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 - 057 - Northern's Submission Re Severability And StandingLarimer 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.
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
NORTHERN COLORADO WATER CONSERVANCY
DISTRICT, and
NORTHERN INTERGRATED SUPPLY PROJECT
WATER ACTIVITY ENTERPRISE,
Defendants.
Attorneys for Norther Colorado Water Conservancy
District and Northern Integrated Supply Project Water
Activity Enterprise:
Bennett W. Raley, #13429
Peggy E. Montaño, #11075
William Davis Wert, #48722
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
Case No. 21CV30425
DEFENDANTS NORTHERN COLORADO WATER CONSERVANCY DISTRICT
AND NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY
ENTERPRISE’S SUBMISSION REGARDING SEVERABILITY AND STANDING
Defendants, Northern Colorado Water Conservancy District and Northern Integrated
Supply Project Water Activity Enterprise (collectively, “NISP Enterprise”), by and through their
undersigned attorneys, hereby submit the following with regard to the Court’s February 4, 2022
DATE FILED: April 22, 2022 9:03 AM
FILING ID: 3D5BFACA48B5A
CASE NUMBER: 2021CV30425
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“Order Regarding Defendant’s Motions” to approve a stipulation and to dismiss Plaintiffs’
remaining claims.
I. STATEMENT OF RELEVANT FACTS
On January 6, 2022, the NISP Enterprise moved the Court to approve a stipulation
(“Stipulation”) the NISP Enterprise executed with the City of Fort Collins (“City”). In the
Stipulation, the NISP Enterprise agreed that the Resolution did not grant the NISP Enterprise a
vested right to construct a Pipeline that is a part of the Northern Integrated Supply Project
(“NISP”). The NISP Enterprise further agreed that Northern Water’s Board would not, in the
future, take action purporting to establish a vested right for development of the Pipeline. The City
agreed in the Stipulation to dismiss its cross-claim against the NISP Enterprise. Consistent with
the Stipulation, the City filed a notice of voluntary dismissal of its cross-claim on January 7, 2022.
Also on January 7, 2022, the NISP Enterprise moved to dismiss the remainder of Plaintiffs claims
on grounds of mootness. The Plaintiffs opposed this motion and the parties submitted briefs on
the motion.
On February 4, 2022, the Court entered an order approving the stipulation and dismissing
Plaintiffs remaining claims for declaratory relief. However, the Court found that it was not clear
whether Plaintiffs’ request for injunctive relief also should be dismissed, and it ordered the parties
to set a hearing to address two questions: “1) the severability of the vested rights issues from the
overturning of the City Planning and Zoning Commission’s decision; and 2) whether a third party
has standing to assert a claim that another has been improperly granted a vested right.”
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II. ARGUMENT
A. The vested rights portion of the Resolution is severable from the remainder of the
Resolution.
It is unclear if the Plaintiffs argue that the vested rights portion of the Resolution is not
severable from the remainder of the Resolution. However, they have argued that the Stipulation
does not render Plaintiffs’ claims for relief moot because, according to Plaintiffs, the Stipulation
does not “repeal or otherwise vacate any portion of the Resolution.” Plaintiffs’ Combined Resp.
in Opp. at 4 (Jan. 12, 2022). Plaintiffs are incorrect. The Stipulation clearly nullifies the portion
of the Resolution purporting to grant the NISP Enterprise a vested right in the site-specific
development plan for the Pipeline, and that portion of the Resolution is severable from the portion
overruling the City Planning and Zoning Commission’s decision.
To determine whether portions of a statute, ordinance, or other enactment are severable
from the rest of the enactment, Colorado courts look to “two factors: (1) the autonomy of the
portion remaining after the defective provisions have been deleted and (2) the intent of the enacting
legislative body.” Dallman v. Ritter, 225 P.3d 610, 638 (Colo. 2010) (quoting City of Lakewood
v. Colfax Unlimited Ass’n, 634 P.2d 52, 70 (Colo. 1981)); see also Reams v. City of Grand
Junction, 676 P.2d 1189, 1196 (Colo. 1984) (holding that a severability analysis “applies with
equal vigor to city charters and ordinances”). A statute, ordinance, or other enactment is not
severable “if its purpose is so eviscerated by necessary nullifications that the original law cannot
stand in any working order.” Dallman, 225 P.3d at 639.
In Reams, the Colorado Supreme Court addressed an ordinance levying special
assessments to cover the costs of a special improvement district that provided that any excess
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monies held by the city finance director after the retirement of bonds would be retained and used
for other purposes of the improvement district, “or for such purposes as the City Council of the
City of Grand Junction may from time to time direct.” 676 P.2d. at 1192. As the City later
acknowledged in the litigation, the provision allowing the diversion of excess special assessment
revenues to other purposes was legally invalid, but the City maintained that that portion of the
ordinance was severable. Id. at 1193. The Colorado Supreme Court agreed and held that the
language permitting the use of excess funds for any other City purpose was severable from the rest
of the ordinance imposing the special assessments. Id. at 1196. As the Court observed, the other
sections of the ordinance were valid, were not dependent on how excess funds were allocated, and
“remain[ed] self-executing in the absence of” the invalid language. Id.
In Robertson v. City and County of Denver, 874 P.2d 325, 335 (Colo. 1994), the Colorado
Supreme Court considered whether a portion of a city ordinance that banned possession of one
type of firearm was severable from the rest of the enactment, which banned other types of weapons
and dictated the scope of and exceptions to that prohibition. As the Court noted, “[t]he only result
of finding [the first section] vague is that the reach of the ordinance is slightly narrower than as
enacted.” Id. In other words, the city’s intent made it clear that it would have enacted a narrower
ban (as opposed to no ban at all) had it known the section at issue was invalid.
Where courts find portions of a statute or ordinance not severable from the remainder, they
do so due to evidence that the legislating body in question would not have adopted the enactment
in the absence of the invalid provision. For example, in Williams v. City and County of Denver,
607 P.2d 981, 983 (Colo. 1979), the Colorado Supreme Court found, after a lower court invalidated
various discretionary criteria for the licensing of adult businesses on vagueness grounds, that the
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remainder of the ordinance was not severable. This was because severing the unconstitutionally
vague portions of the resolution would create a result where a license would automatically issue
on compliance with certain zoning and building regulations, a result the Court found the city
council did not intend. Id.
Similarly, in Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 286 (Colo.
App. 2004), the court considered a historic area ordinance that contained a “private agreement
provision” allowing the city to enter agreements with the University of Colorado and other private
landowners allowing the alteration or demolition of buildings that would otherwise be covered by
the ordinance. After ruling the private agreement provision to be unconstitutional, the court
concluded the remainder of the ordinance was not severable. Id. at 289–90. Finding that the city
added the private agreement provision to the ordinance to avoid litigation with the University and
others over the reach of the ordinance, the court ruled the city would not have adopted the
ordinance at all absent the private agreement provision. Id. at 289.
Applying the severability analysis to this case, the portion of the Resolution purporting to
grant NISP Enterprise a vested right in the Pipeline’s development plan is severable from the
remainder of the Resolution.
Under the first severability factor, the portion of the Resolution overruling the Planning
Commission’s disapproval of NISP’s SPAR application is independent of the portion attempting
to grant the NISP Enterprise vested rights under C.R.S. § 24-68-101 et seq., the Vested Property
Rights Act (“VPRA”). First, Northern Water’s Board of Directors overruled the Planning
Commission under a separate statute than the one it invoked regarding vested property rights. The
former action occurred pursuant to C.R.S. § 31-23-209. The latter action, which the NISP
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Enterprise’s stipulation with Fort Collins nullifies, cited C.R.S. § 24-68-101 et seq. Section 31-
23-209 contains no reference to section 24-68-101 and does not require approval of a site-specific
development plan or creation of a vested right under section 24-68-101 or any other authority
before a governmental body can overrule the adverse decision of a planning commission. It merely
requires the vote of a two-third majority of the governing body of that entity—in this case,
Northern Water’s Board of Directors.
The second factor, the intent of the enacting legislative body, also supports severability.
Northern Water’s Board of Directors, the governing body for the NISP Enterprise, intended to
overrule the Planning Commission regardless of whether the Resolution also established vested
rights under the VPRA. The NISP Enterprise submitted the required SPAR application to Fort
Collins as one of several approvals from various entities required for NISP. After the Planning
Commission’s disapproval of that application, Northern Water’s Board was authorized to, and did,
overrule the disapproval pursuant to C.R.S. § 31-23-209. By overruling the Planning
Commission’s disapproval, the NISP Enterprise acted according to its intent to construct the
Pipeline, and that intent is served regardless of whether the Resolution also created vested rights
under the VPRA. Establishing statutory vested rights would have afforded certain protections to
the project from future requirements that could be imposed by the City, see C.R.S.,
§§ 24-68-103(1)(c), 24-68-105, but overruling the Planning Commission even without those
additional protections aligns with the NISP Enterprise’s intent behind the application to construct
NISP. This intent, to exercise authority under two separate statues, is reflected in the Stipulation
as well, which focuses on the vested rights issue addressed in Section 3 of the Resolution and does
not modify the portions of the Resolution that overrules the Planning Commission’s disapproval
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pursuant to C.R.S. § 31-23-209. The Board intended to overrule the Planning Commission to
surpass the SPAR hurdle regardless of whether doing so also insulated the Pipeline from other
future land use requirements.
The portion of the Resolution purporting to grant a vested right and approve the site-
specific development plan for the Pipeline is severable from the remainder of the Resolution. To
find otherwise would effectively grant the Plaintiffs relief (vacatur of the entire Resolution) that is
not related to the vested rights issues at all and would constitute a reversal of the Court’s prior
dismissal of Plaintiffs’ challenges to C.R.S. § 31-23-209 and the Board’s authority to overrule the
Planning Commission under that statute. Finding otherwise also would deprive the Board of its
statutory authority to overrule the Planning Commission, not for failure to comply with
C.R.S. § 31-23-209, but for reasons related to a separate statute, the VPRA, and the NISP
Enterprise’s Stipulation with Fort Collins regarding that statute. To uphold the validity of that
prior order and not grant Plaintiffs’ the relief that the court denied when it dismissed Plaintiff’s
prior claims, the Court must find that the vested rights portions of the Resolutions are severable
from the remainder. As a result of the severability, the Plaintiffs’ request for injunctive relief on
their vested rights claims, like their claim for declaratory relief, is moot and must be dismissed.
B. Plaintiffs do not have standing to challenge the Resolution.
As noted above, the vested rights portion of the Resolution is severable, and Plaintiffs'
claims therefore are moot. Whether Plaintiffs have standing to raise those claims therefore also is
moot, but if the issue is not moot, Plaintiffs lack standing to assert that another has been improperly
granted a vested right.
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In Colorado, standing requires a claimant to demonstrate (1) an injury-in-fact (2) to a
legally protected interest. Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004). This standing
requirement “distinguishes ‘those particularly injured by . . . government action,’ who may present
their controversy for resolution by the courts, from members of the general public, whose interests
are more remote and who ‘must address their grievances against the government through the
political process.’” Reeves-Toney v. School Dist. No. 1 in City and Cty. of Denver, 2019 CO 40,
¶ 22, 442 P.3d 81, 86. The Plaintiffs bear the burden of proving their own standing to challenge
the Resolution’s attempted establishment of vested rights under the VPRA. See Arapahoe Cty.
Dep’t of Human Servs. v. People ex rel. D.Z.B., 2019 CO 4, ¶ 7, 433 P.3d 578, 580.
Colorado allows a party to assert the rights of third parties in some circumstances. Even
when asserting the rights of others, however, the party before the court must still “demonstrate
injury to themselves sufficient to guarantee concrete adverseness.” People v. Rosburg, 805 P.2d
432, 435 (Colo. 1991). In addition, the party before the court must demonstrate “one of three
circumstances: (1) the existence of a substantial relationship between the party before the court
and the third party; (2) the difficulty or improbability of the third party in asserting an alleged
deprivation of his or her rights; or (3) the need to avoid dilution of third-party rights in the event
that standing is not permitted.” City of Greenwood Village, 3 P.3d at 439.
The Plaintiffs argue they have standing to challenge the NISP Enterprise’s Resolution and
its attempted creation of vested rights under the VPRA because the components of NISP subject
to the Resolution would adversely impact them in the way of “noise, air pollution, traffic, water
pollution, City property damage, adverse possession of City property, diminution of City property
value, loss of recreational use, environmental interests, and enjoyment thereof. . . .” First Am.
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Compl., ¶ 9. Plaintiffs do not assert injury sufficient to establish standing in their own right or on
behalf of a third party. Most obviously, the Plaintiffs do not explain how their asserted interests
will be adversely impacted by the portion of the Resolution that attempted to create vested rights
under the VPRA now that the NISP Enterprise has stipulated it will no longer assert or rely on this
provision. No injury to a legally protected interest can occur to Plaintiffs when the NISP Enterprise
has stipulated not to rely on the part of the Resolution still at issue.
In addition, the injuries Plaintiffs allege are too remote from the conduct they challenge to
constitute an injury in fact. “Standing is conveyed by neither the remote possibility of a future
injury nor an injury that is overly indirect and incidental to the defendant's action.” Ainscough,
90 P.3d at 856. Colorado courts have recognized that there is no injury in fact, and therefore no
standing, when the harm a plaintiff complains of does not flow directly from the action they
challenge. For example, in Cloverleaf Kennel Club v. Colo. Racing Comm’n, the Colorado
Supreme Court denied standing to a racetrack challenging a regulatory decision that allowed a
competitor track to increase the number of days it operated, reasoning that the alleged injury to the
racetrack stemmed from lawful economic competition, not the challenged regulatory decision of
the defendant Commission. 620 P.2d 1051, 1057 (Colo. 1980). Similarly, in 1405 Hotel, Inc. v.
Colo. Economic Dev. Comm’n, plaintiff hotels challenged a decision by the defendant economic
development agency to provide tax incentives for the construction of the Gaylord Hotel near DIA.
370 P.3d 309, 318 (Colo. App. 2015). The court found the hotels lacked standing, reasoning that
even if the defendant commission failed to comply with its governing statutes, as the plaintiffs
alleged, the harm to the plaintiffs did not stem from that failure, but from the lawful competition
they anticipated once the new hotel was complete. Id.
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Similar to the cases discussed above, the injuries the Plaintiffs have alleged here all stem
from the construction of the Pipeline, not adoption of the Resolution and its (now nullified) attempt
to create vested rights under the VPRA. The Resolution does not itself authorize construction of
the Pipeline. The Resolution overrules the Planning Commission’s denial, but the NISP Enterprise
will still need to obtain additional approvals from the U.S. Army Corps of Engineers before it can
construct the Pipeline. In addition, as Plaintiffs themselves recognized in their complaint, the NISP
Enterprise “does not own or operate the parcels or property upon which the Poudre River Intake
would be located,” id. ¶ 23, and the NISP Enterprise must acquire real property rights from the
City to construct the intake and the pipeline, acquisitions, id. ¶¶ 24, 33. Because the Resolution
does not directly authorize construction of the Pipeline, Plaintiffs’ injuries stemming from the
construction of the Pipeline are too indirect and remote to establish that Plaintiffs have suffered an
injury from the action they challenge here, adoption of the Resolution and its (now nullified)
attempt to create vested right sunder the VPRA.
Even if they could establish an injury, the Plaintiffs cannot establish any of the other factors
needed for third-party standing. The City, not the Plaintiffs, is the entity entitled to review and
approve a development plan for the Pipeline. The Plaintiffs have no special relationship to the
City that would authorize them to assert this right on the City’s behalf. Nor is the City incapable
of asserting its own rights. The City is a party to this proceeding and has elected to protect its
rights by means of the Stipulation. There is no basis for the Plaintiffs to challenge that decision.
Finally, there is no need to avoid dilution of third-party rights here. The Colorado Supreme Court
has also been clear that this third circumstance allowing third-party standing “is narrow . . . [and]
deals with unique circumstances that prevent a third party from actually vindicating his or her own
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rights.” City of Greenwood Village, 3 P.3d at 439. Otherwise, “it would swallow the third-party
standing rule were we to turn this third exception into a free-standing proviso based on the assertion
that the important rights of others may be at stake.” Id. Here, there are no special circumstances
that would prevent the City or any other party from vindicating its rights if third-party standing is
denied to the Plaintiffs.
Plaintiffs fail to meet the criteria for third party standing. There is no basis for the Plaintiffs
to press claims that the City has itself chosen to settle.
Plaintiffs also appear to rely in part on their status as Fort Collins taxpayers to establish
standing. First Amended Complaint, ¶ 9. Taxpayer standing, while broad under Colorado law,
requires a “clear nexus” between the taxpayer’s status as a taxpayer and the challenged government
action,” Reeves-Toney, ¶ 23, 442 P.3d at 86; here, the challenged action is Northern Water’s
attempted establishment of vested rights under the VPRA. A taxpayer can assert injury to a legally
protected interest only by challenging “an allegedly unconstitutional expenditure of public funds
to which she has contributed by her payment of taxes.” Id. ¶ 23, 442 P.3d at 86. Plaintiffs alleged
that they have standing to challenge the NISP Enterprise’s Resolution because it would allegedly
prompt a “waste of City of Fort Collins tax dollars paid by Plaintiffs’ members.” First Am. Compl.,
¶ 9. Plaintiffs’ challenge is not directed at an allegedly unconstitutional expenditure of City tax
dollars—it is directed at a decision by the NISP Enterprise to attempt to establish a vested right,
which the NISP Enterprise has stipulated it will no longer assert. Taxpayer standing thus has no
application in this case.
Respectfully submitted: April 22, 2022.
TROUT RALEY
s/ Peggy E. Montaño
Peggy E. Montaño, #11075
Bennett W. Raley, #13429
William Davis Wert, #48722
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
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.
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CERTIFICATE OF SERVICE
I certify that on April 22, 2022, a true and correct copy of the foregoing DEFENDANTS
NORTHERN COLORADO WATER CONSERVANCY DISTRICT AND NORTHERN
INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE’S SUBMISSION
REGARDING SEVERABILITY AND STANDING 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 Attorney’s Office
No Pipe Dream Corporation 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