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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 - 061 - Order On Motion To Dismiss1 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. Defendants: City of Fort Collins, et al. Case Number: 2021CV30425 Courtroom: 5B ORDER REGARDING DEFENDANT’S MOTION TO DISMISS This matter is before the Court following the Court’s call for supplemental briefing on February 4, 2022, and the subsequent motions hearing on April 29, 2022. The Court has reviewed the evidence and briefing filed by both parties. The Court finds and orders as follows: This matter is dismissed for lack of subject matter jurisdiction. I. Background This case concerns the development of a river diversion plan impacting the Cache la Poudre river in Larimer County, Colorado. Plaintiffs are two community organizations. Defendant Northern Integrated Supply Project Water Activity Enterprise (the “Enterprise”) is a water enterprise in northern Colorado. Water enterprises are government entities that manage water-related projects in Colorado. Defendant Northern Colorado Water Conservancy District (the “District”) is a water district that oversees the Enterprise. Both organizations are organized according to Colorado Law. See C.R.S. § 37-45.1-103. The river diversion plan would create pipelines of water to new reservoirs. Pls. Am. Compl. ¶17. Those reservoirs would bring additional water to several communities in and surrounding Larimer county. Id. ¶21. Plaintiffs assert that the river diversion would hurt their enjoyment of the river’s banks, reduce property values, and reduce biodiversity in the area. Id. ¶8-9. DATE FILED: May 2, 2022 8:07 AM CASE NUMBER: 2021CV30425 2 To build the pipelines, Defendants must have their plans reviewed by federal, state, and local entities. This matter concerns the local review of the Defendants’ plan by the City. The City calls this review the “Site Plan Advisory Review” or “SPAR.” The SPAR inquires into whether a proposed plan meets the standards of the Fort Collins Land Use Code, among other things. The City denied Defendants SPAR application on June 30, 2021, effectively putting Defendants plans to build the river diversion on hold. Id. ¶38. However, the District overruled the City’s SPAR decision on August 12, allowing the project to continue. Id. ¶39. The District adopted Resolution D-1367-08-21 (the “Resolution”) confirming this. See Def.’s Ex. #A. Defendants previously moved this Court to dismiss several of Plaintiff’s claims. See “Order Granting Def.’s Partial Mot. to Dismiss”. The Court dismissed many claims against defendants following an approved stipulation between the city and the water entities. See February 4 Order. The Court called for supplemental briefing as to whether Plaintiffs had standing to assert their remaining claims. Id. II. Applicable Law In resolving standing, the Court assumes that all facts alleged by Plaintiffs are true. See Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1289 (Colo. 1992). “A plaintiff has standing if [they] ha[ve] suffered an injury in fact to a legally protected interest. An interest is legally protected if the constitution, common law, or a statute, rule, or regulation provides the plaintiff with a claim for relief. A plaintiff establishes an injury in fact by alleging facts that show the defendant caused harm to the plaintiff's legally protected interest.” Reeves v. City of Fort Collins, 170 P.3d 850, 851 (Colo. App. 2007) (citing Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004). III. Application of Law Plaintiffs have asserted two bases for standing in their complaint and in the briefing before the Court: 1) that their members1 enjoyment of public land will be prejudiced; and 2) that they are conferred standing to challenge the NISP decision by the Fort Collins Municipal code. See Pl.’s Am. Compl. ¶9; Pl.’s Resp. 7-9. Defendants disagree and argue that Plaintiffs do not have standing to assert a claim alleging that another entity was improperly granted a vested right. Def.’s Submission, 6-7. Specifically, Defendants argue that: 1) Plaintiff’s assertions of standing premised on physical harm to public land is not tied to the improper grant of a vested right; and 1 Plaintiff’s members are not parties to this action. 3 2) that Plaintiff’s standing derived from the Fort Collins Municipal Code is limited to review of Fort Collins land use and city council decisions. The Court agrees with Defendants on both points. A. Physical and Monetary Harms The Court’s February 4th Order narrowed the scope of claims remaining to just claims requesting injunctive relief arising from the improper grant of a vested right by the NISP board. Plaintiffs claim that they have standing arising from their members exposure to “noise, air pollution, traffic, water pollution, [c]ity property damage, adverse possession of city property, diminution of City property value, loss of recreational use, environmental interests and enjoyment thereof, and waste of City Fort Collins tax dollars” is not tied to the remaining claim at issue. Pl.’s Am. Compl. ¶9. This is because the improper grant of a vested right is not tied to the harms alleged above. The record and argument show that the harm of an improper grant of a vested right is entirely directed at the City, who would have lost the ability to impose subsequent regulations upon the land that NISP is seeking to operate on. Likewise, the harms identified by Plaintiffs above are speculative and incidental to the improper grant of a vested right. See Ainscough, 90 P.3d at 856. The Court would have to speculate as to the outcome of future applications conducted by Defendants to find that the improper grant of a vested right would result in any of the harms or construction identified by Plaintiffs. The Court finds that the physical and monetary harms identified by Plaintiffs are incidental to the NISP’s action. Accordingly, because the Plaintiffs physical and monetary harms alleged are grounded in the “remote possibility of a future injury” that is “indirect and incidental” to the improper grant of a vested right, they do not have an injury in fact with regard to these claims. B. Municipal Code Standing Plaintiffs assert that they have standing arising from the municipal code to challenge the NISP’s improper grant of a vested right, citing Reeves v. City of Fort Collins, 170 P.3d 850, 853-54 (Colo. App. 2007). Plaintiffs are correct that standing can be conferred by statute, or by municipal code. See Id. (citing Ainscough, 90 P.3d at 857). However, when a legally protected interest is established by statute or by municipal code, the Court looks to the text of that source of law to see the extent of the legally protected interest conferred. See People v. District 4 Court, 713 P.2d 918, 921 (Colo. 1986) (holding that “[the] primary task in construing a statute is to ascertain and give effect to the intent of the [drafter.]”) Reeves holds that interested parties may have standing to challenge land use commission proceedings or city council proceedings, because those interested parties are conferred a legally protected interest in the text of the municipal code. See Id.; Fort Collins Mun. Code, § 2-48(a) (“[a] party-in-interest may appeal to the City Council the final decision of any board, commission or other decision maker to which this appeal procedure applies in the manner provided in this Division.”) Reeves found the legally protected interest extended to: “ensuring the lawfulness of development project decisions.” 170 P.3d at 854. On its face, the legally protected interest conferred by § 2-48(a) is confined to matters governing bodies subject to the Fort Collins Municipal Code- not NISP. To find otherwise would allow a party to use a municipal code to bootstrap standing against a State agency. Indeed, the only remaining claims before the Court concern the Vested Rights Act, C.R.S. § 24-68-101, et. seq. By its own terms, the legally protected interest in Reeves extends only to review of the lawfulness of development project decisions, not to claims under the Vested Rights Act. Accordingly, Plaintiffs do not have a legally protected interest in pursuing a vested rights act claim and the Court lacks subject matter jurisdiction. IV. Order The Court lacks subject matter jurisdiction over this matter. Accordingly, the Court dismisses Plaintiff’s remaining claims and closes the case. Dated: May 2, 2022. BY THE COURT: __________________________ Gregory M. Lammons District Court Judge