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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 - 036 - Order Granting Plaintiffs Motion1 District Court, Larimer County, State of Colorado 201 LaPorte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 494-3500 ▲ COURT USE ONLY ▲ Plaintiff: Save the Poudre, et. al. v. Defendant: The City of Fort Collins, et. al. Case Number: 2021CV30425 Courtroom: 5B ORDER GRANTING PLAINTIFF’S MOTION TO PREPARE AND CERTIFY ADMINISTRATIVE RECORD This matter is before the Court because of Plaintiff’s filing of “Re-Filed Motion to Prepare and Certify Administrative Record” on September 2, 2021. Defendant filed a response on September 28, and Plaintiffs filed a reply on October 5. Having reviewed the Motion, response, reply, and all relevant evidence and applicable law, the Court finds and orders as follows: This case is about a proposed river diversion and land-use plan in Fort Collins Colorado. The City of Fort Collins Planning and Zoning Commission (the “Commission”) denied a land-use application. The Northern Colorado Water Conservancy District (the “District”) reversed the Commission’s decision to deny the land use application, meaning the land use was allowed. Plaintiff alleges that the District’s action was not within their legal authority. In the motion, the Plaintiff requests the Court to enter an order directing the Defendants to prepare an administrative record of the District’s decision. The parties confine their opposition to two narrow points: 1) Plaintiff’s requests for statements as to whether certain regulations exist; and 2) whether Defendants should prepare a transcript in addition to the video of the hearing in question. As to the first disagreement, parts of two requests for the record are in controversy: DATE FILED: October 12, 2021 1:26 PM CASE NUMBER: 2021CV30425 2 “a copy of any procedural regulations that apply to overturn proceedings under C.R.S. §31-23-209 that were adopted by the District prior to the August 12, 2021 overturn proceeding. If no such regulations exist, the District shall state as such in its certification.” “a copy of any substantive regulations containing standards and/or criteria to be applied by the District Board in an overturn hearing under C.R.S. §31-23-209 that were adopted by the District prior to the August 12, 2021 overturn proceeding. If no such regulations exist, the District shall state as such in its certification.” Pl.’s Mot. ¶¶h, i. (Emphasis added). The bolded portions of both quoted requests are disputed. Defendants argue that a request for a statement was not part of the evidence before the District, and therefore should not be part of the administrative record. Def.’s Resp. 2-3. Plaintiffs argue that a statement of whether such documents exist helps them gather information more efficiently. Pl.’s Reply 2. The Court agrees with the Defendants. To the extent that Plaintiff is requesting regulations that were before the Commission, the Court will order those regulations to be included in the record. The Court will not order the Defendant to include new statements in the record. Plaintiffs “request a ruling that they may seek such information during discovery in their Rule 57 claim.” Pl.’s Reply 2. This request is denied as it is not ripe. As to the second disagreement, Plaintiffs request a transcript of the Commission’s hearing. Defendants argue that a video would be more convenient, and request in the alternative that the Plaintiffs pay the costs of creating the transcript if the Court orders one to be created. The Court orders the Defendants to produce the transcript requested by the Plaintiffs. Plaintiffs must pay for the preparation of the transcript. See C.R.C.P. 106(a)(4)(IV). Accordingly, the Court orders the Defendants to produce and certify the record of the decision below, consistent with the following: 1. Northern Water shall prepare and certify the administrative record of its August 12, 2021 proceeding. 2. Northern Water shall prepare and certify the administrative record no later than 21 days after Northern Water and the Northern Integrated Supply Project Water 3 Activity Enterprise (“NISP Enterprise”) file their answer to Plaintiffs’ Amended Complaint.1 3. Plaintiffs shall advance reasonable costs to Northern Water for preparing the administrative record.2 4. The administrative record should include the following documents and materials: a) A copy of the NISP Enterprise’s SPAR land use application filed with the City of Fort Collins; b) a copy of all relevant provisions of the City’s Land Use Code pertaining to SPAR applications and any relevant definitional terms; c) a copy of the City’s denial of the NISP Enterprise’s SPAR application. d) the administrative record from the City’s Planning & Zoning Commission related to the Enterprise’s SPAR application; e) the administrative record for the Board of Northern Water’s August 12, 2021 proceeding; f) Resolution D-1367-08-21; g) a video recording and transcript of Northern Water’s August 12, 2021 proceeding related to the NISP Enterprise’s SPAR application denial by the Planning & Zoning Commission and Resolution D-1367-08-21; h) a copy of any public notice published in a newspaper of local circulation in the City of Fort Collins regarding Northern Water’s August 12, 2021 overturn proceeding; and i) any other document considered by the Board of Northern Water in its actions of August 12, 2021 related to C.R.S. § 31-23-209. Dated: October 12, 2021 BY THE COURT: __________________________ Gregory M. Lammons District Court Judge 1 Plaintiffs did not oppose this timeline in their reply. See Pl.’s Reply 3. 2 Plaintiffs did not object to Defendant’s argument that the Plaintiffs must advance the costs for the preparation of the record.