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 - 037 - Response To Motion To Dismiss
Larimer County District Court
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
SAVE THE POUDRE, and
NO PIPE DREAM CORPORATION
Plaintiffs
v.
NORTHERN COLORADO WATER CONSERVANCY
DISTRICT,
NORTHERN INTEGRATED SUPPLY PROJECT WATER
ACTIVITY ENTERPRISE,
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
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’ RESPONSE IN OPPOSITION TO THE NORTHERN
DEFENDANTS’ MOTION TO PARTIALLY DISMISS FIRST AMENDED
COMPLAINT
________________________________________________________________________
Plaintiffs oppose the Northern Defendants’ Motion to Partially Dismiss First
Amended Complaint (“Motion”) and request that the Court deny the Motion.
2
I. STANDARD OF REVIEW
The Northern Defendants’ Motion is based solely on Colo.R.Civ.Pro. 12(b)(5). In
Warne v. Hall, the Colorado Supreme Court adopted the United States Supreme Court’s
“plausibility standard” for determining whether a plaintiff has stated a claim upon which
relief can granted. 373 P.3d 588, 595 (2016)(citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)). Under that test, “the factual allegations of the complaint must be enough to raise
a right to relief ‘above the speculative level,’ and provide ‘plausible grounds’” to create
an inference that the allegations are true. Id. at 591 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 591 (2007)). See also, Walker v. Women’s Professional Rodeo
Association, Inc., 2021 COA 105, ¶ 37 (Colo. App. 2021). Under this “plausibility”
standard, the factual allegations in the complaint are still viewed as true and in a light
most favorable to the plaintiffs. Pea’a v. American Family Mutual Insurance Co., 463
P.3d 879, 881 (Colo. App. 2018). A claim may also be dismissed under C.R.C.P. 12(b)(5)
if the substantive law does not support it. Pea’a, 463 P.3d at 881.
Motions to dismiss for failure to state a claim under C.R.C.P. 12(b)(5) are viewed
with disfavor. Begley v. Ireson, 399 P.3d 777, 779 (2017). “A complaint need not
express a complete recitation of all facts that support a claim, but need only serve notice
of the claim asserted.” Id, citing Story v. Bly, 241 P.3d 529 (Colo. 2010). Generally, in
ruling on a Rule 12(b)(5) motion, a court may consider only those matters stated in the
complaint and exhibits thereto. Pea’a, 463 P.3d 881.
II. THE NORTHERN DEFENDANTS’ MOTION
Northern Defendants’ Motion does not identify any factual pleading deficiencies
for claims based on C.R.S. § 31-23-209. The Northern Defendants’ Motion does not
3
argue that Plaintiffs’ First Amended contains speculative or implausible factual
allegations. The Northern Defendants’ Motion also does not argue that Plaintiffs’ First
Amended Complaint contains unsupported “conclusory” factual allegations.
Instead, the Northern Defendants’ Motion argues that “Plaintiffs are not entitled
to relief under these claims because as a matter of law the Board had the authority and
properly overturned the Planning Commission pursuant to the L&E Statute.” Motion, p.
1 (emphasis added).1 At the same time, the Northern Defendants’ Motion concedes
“[t]here are no reported decisions analyzing the location and extent statute for
municipalities….” Motion, p. 5, ftn. 1.
The Northern Defendants’ Motion at least tacitly admits that Plaintiffs’ First
Amended Complaint presents issues of first impression. As such, there is no substantive
case law requiring dismissal of any of Plaintiffs’ claims at the pleading stage. Based on
this alone, the Northern Defendants’ Motion should be denied in its entirety and the
Court should address Plaintiffs’ claims after briefing the merits and only after Rule 57
discovery has been completed and the Northern Defendants have filed a complete
administrative record for the August 12, 2021 “overturn” proceeding.
III. ARGUMENT
A. Paragraphs 59(a), 59(b), 66(a), & 66(b) should not be dismissed.
1 Plaintiffs disagree with the Northern Defendants’ characterization of the First Amended
Complaint as containing only “two categories of claims”—those under C.R.S. § 31-23-
209 and those under C.R.S. 24-68-101 et seq. Plaintiffs’ First Amended Complaint also
raises claims based on City Code Section 2.1.3(E)(1), due process claims under Colorado
Constitution Article XXIX(1)(c), and a direct facial constitutional challenge to C.R.S. §
31-23-209 itself for being void for vagueness. First Amended Complaint, ¶¶ 59(f); 59(g);
59(h); 59(i); 66(f); 66(g); and 66(h). The First Amended Complaint seeks declaratory and
injunctive relief under Colo.R.Civ.Pro. 57, as well as similar alternative relief under
Colo.R.Civ.Pro. 106(a)(4).
4
Paragraphs 59(a) and 66(a) of the First Amended Complaint allege that the
District did not have the legal authority and jurisdiction under C.R.S. § 31-23-209 to
overturn the City’s disapproval of the Enterprise’s land use application. Paragraphs 59(b)
and 66(b) allege that the District, as the “governmental body” and not the business
“Enterprise,” must submit the SPAR permit application to the City of Fort Collins
Planning Commission.
a. Paragraphs 59(a) and 66(a).
The District did not have authority or jurisdiction to overturn the City’s
disapproval of the Enterprise’s SPAR application because the District and the Enterprise
did not “own or operate” the parcels upon which construction of the Poudre River Intake
and/or Pipeline would occur as required by the City Code Section 2.1.3(E)(1). The
Northern Defendants’ Motion does not contest that they do not own the parcels. The
Northern Defendants also fail to contest that City Code Section 2.1.3(E)(1) clearly states,
“[t]he 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.” First Amended Complaint, Exhibit 10
(emphasis added). When a municipal ordinance is clear on its face, it must be applied as
written. Walker Commercial, Inc. v. Brown, 2021 COA 60, ¶32 (Colo. App. 2021).
Because the Northern Defendants do not own or operate the parcels, they do not
meet the criteria for entitlement of a SPAR permit and thus lack authority and jurisdiction
to overturn the City’s denial of the Enterprise’s SPAR application.2 Paragraphs 59(a) and
66(a) pass the factual “plausibility” standard and there is legal support for Plaintiffs
2 Further legal support for this claim is provided below in section B of this response.
5
claims in City Code Section 2.1.3(E)(1). The Motion should be denied as to these
paragraphs and the issues should instead be fully briefed on the merits.
b. Paragraphs 59(b) and 66(b).
The Location and Extent Statute requires “the [SPAR application] submission to
the [City’s planning] commission shall be by the governmental body having jurisdiction”
over the “authorization and financing” of the project. C.R.S. § 31-23-209 (emphasis
added). The use of the word “shall” indicates a mandatory requirement. People v.
District Court, Second Judicial District, 713 P.2d 918, 921 (Colo. 1986 en banc). The
Northern Defendants do not contest the fact that “[t]he District”, and not the Enterprise,
“is the governmental body with authorization or financing of NISP.” First Amended
Complaint, ¶56. See, Reber v. South Lakewood Sanitation Dist., 362 P.2d 877, 879
(Colo. 1961)(examining similar language in C.R.S. 106-2-9(1)(c)(1953)). The Northern
Defendants also do not contest the fact that “[t]he District did not submit the SPAR
application to the City and the Planning & Zoning Commission. The Enterprise
submitted the SPAR application to the City and Planning and Zoning Commission.” First
Amended Complaint, ¶57 and Motion, p. 1 (“[t]he NISP Enterprise filed a land use
application…”).
The “District” and the “Enterprise” are separate legal entities. The “District” is a
“local government entity.” C.R.S. §37-45.1-102(1). In contrast, the “Enterprise” is a
“business.” C.R.S. §37-45.1-102(4).
A plain reading of C.R.S. § 31-23-209 mandates that the governmental body
submit the SPAR application to the City. When a municipal ordinance is clear on its face,
it must be applied as written. Walker Commercial, 2021COA 60, ¶32. The District, as
6
the governmental body, did not submit the SPAR application. Paragraphs 59(b) and 66(b)
pass the “factual “plausibility” standard and are supported by law in C.R.S. § 31-23-209.
The Motion should be denied as to these paragraphs and the issues should instead be fully
briefed on the merits.
B. Paragraph 59(f) and 66(f) should not be dismissed.
Paragraphs 59(f) and 66(f) of the First Amended Complain allege that the
Northern Defendants’ August 12, 2021 “overturn” actions should be vacated because the
Fort Collins City Code Section 2.1.3(E)(1) requires a SPAR applicant to own or operate
the parcels at the time of the SPAR application submission. As noted above, the Northern
Defendants do not contest that the City owns the relevant parcels. The Northern
Defendants also do not contest that Section 2.1.3(E)(1) of the City Code clearly states,
“[t]he 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.” First Amended Complaint, Exhibit 10.
Code Section 2.16.1 reiterates that “[t]he …applicability of a Site Plan Advisory Review
is contained in Section 2.1.3 (E).” Id. Section 2.1.3(E)(1) is clear on its face that SPAR is
only applicable “to parcels owned or operated” at the time of “the submittal and approval
of a site development plan.” When a municipal ordinance is clear on its face, it must be
applied as written. Walker Commercial, 2021 COA 60, ¶32.
Further, the Northern Defendants do not contest that Fort Collins is a home- rule
city under the Colorado Constitution. First Amended Complaint, p. 4, ¶13. The
Colorado Constitution states that home-rule cities are “vested with…power to make…the
charter of said city…which shall be its organic law and extend to all its local and
7
municipal matters…and the ordinances made pursuant thereto in such matters shall
supersede within the territorial limits …of said city…any law of the state in conflict
therewith. Colo.Const. art. XX, § 6. In matters of local concern, such as the siting of
specific projects under a local location and extent regulation, a home-rule ordinance
supersedes a conflicting state statute. City of Fort Collins v. Colorado Oil and Gas
Association, 369 P.3d 586, 591 (Colo. 2016 en banc). In matters of mixed state and local
concern, local ordinances may coexist with state statutes as long as the local ordinances
do not conflict with the state statute. Id.
Although finding that C.R.S. § 31-23-209 was “inapplicable,” the Court in La
Plata County Com’rs v. Board of Adjustment of the City of Durango found that similar
provisions do not “grant blanket immunity or exemption” to governmental bodies from
local land use procedural requirements. 768 P.2d 1250, 1252 (1988). The court in Blue
River Defense Committee v. Town of Silverthorne, 516 P.2d 452, 454 (Colo. App. 1973)
also previously made clear that local land use “zoning procedures” must be followed
even if the governmental applicant had the ultimate power to overturn an adverse land
use decision. Section 2.1.3(E) of the Code does not conflict with C.R.S. § 31-23-209 and
is a local procedural land use requirement that Northern must comply with before SPAR
becomes applicable to its development proposal.
Finally, City Code Section 2.1.3(E)(1) is not expressly preempted because C.R.S.
§ 31-23-209 does not prohibit a local government from adopting local location and extent
regulations, is not impliedly preempted because there is no legislative intent to
completely occupy the field of location and extent regulation, and is not preempted by
operational effect because the requirement to “own or operate” the parcels prior to
8
submission of a SPAR application does not materially impeded or destroy a state interest.
City of Fort Collins, 369 P.3d at 592. Nevertheless, these issues should be resolved in
briefing on the merits, not under Rule 12(b)(5) at the pleading stage, because they
“involve a facial evaluation of the respective statutory and regulatory schemes.” Id.
Paragraphs 59(f) and 66(f) of the First Amended Complaint are based on the clear
and plain language of the City Code and present a plausible legal argument that the
Northern Defendants’ August 12, 2021 actions must be vacated because they do not own
or operate the parcels affected by the SPAR application. The Northern Defendants’
Motion should be denied as to these paragraphs and the issues should instead be fully
briefed on the merits.
C. Paragraphs 59(g), 66(g) and 59(h), 66(h) should not be dismissed.
Plaintiffs’ First Amended Complaint alleges that the Northern Defendants’
August 12, 2021 actions violated their constitutional due process rights because each
voting board member had an unconstitutional bias conflict of interest and because the
“override” was approved without any procedural regulations or standards and criteria
governing the action. First Amended Complaint, Paragraphs 59(g), 66(g) and 59(h),
66(h). Courts should be wary of dismissing a case where the pleadings show that an
alleged violation of a constitutional right is at issue because fundamental rights and
important public policy questions are necessarily involved. Davidson v. Dill, 503 P.2d
157, 162 (1972).
The Quasi-Legislative Argument
The Northern Defendants seek dismissal of Paragraphs 59(g), 66(g) and 59(h),
66(h) by arguing “the Board’s decision to overturn the Planning Commission’s
9
disapproval constituted a ‘quasi-legislative action,’ which does not implicate safeguards
of procedural due process” and thus was completely discretionary and not standards-
based. Motion, pp. 9 & 15. Northern’s “quasi-legislative” argument stands in stark
contrast to Northern’s previous representations to this Court. In June 2021, the Northern
Defendants represented that decisions related to its SPAR application are “typical quasi-
judicial proceedings” and that Plaintiffs’ “exclusive remedy lies in an action under Rule
106 after this quasi-judicial action concludes.” Northern Defendants Response to
Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction and
Request for Emergency Hearing, pp. 12 & 14, filed June 18, 2021 (emphasis added).
Then on September 28, 2021 they stated, “Northern Water believes both quasi-judicial
and quasi-legislative actions were taken at this proceeding…” but fail to specify which
actions fall into which category. Northern Defendants’ Response to Motion to Prepare
and Certify Administrative Record, p. 1, ¶ 1. Now the Northern Defendants’ Motion
appears to argue that all of their actions pertaining to the L&E Statute were “quasi-
legislative.”
As a matter of law, Northern Defendants’ August 12, 2021 L&E Statute-related
actions were “quasi-judicial”3-- not quasi-legislative. Quasi-legislative actions involve
prospective actions of general applicability—such as a city-wide zoning plan. Douglas
County Bd. v. Public Utilities Com’n, 829 P.2d 1303, 1307 (Colo. 1992). The Motion
fails to identify any statutory legal authority enacted by the Colorado Legislature
3 But, because the District’s “overturn” hearing did not apply the City of Fort Collins
review criteria or adopt its own procedural and review criteria regulations for the
proceeding, Northern’s actions exceeded its jurisdiction and/or abused its discretion
under Colo.R.Civ.Pro. 106(a)(4). People v. Maxwell, 401 P.3d 518, 520 (Colo. App.
2017); Sherman v. Colorado Springs Planning Commission, 763 P.2d 292 (1988).
10
allowing the District to legislate generally applicable land use regulations within the
home rule City of Fort Collins.
In contrast, quasi-judicial decisions “affect a specific party and resolve particular
issues of disputed fact…” Douglas County Bd., 829 P.2d at 1307. It is clear that the
Enterprise’s SPAR application filed with the City, and its subsequent overturning of the
disapproval of that SPAR application, involve decisions affecting a specific party (the
Enterprise), a specific project (NISP), specific structures (the Poudre River Intake
Structure and Poudre Intake Pipeline), specific parcels of land, and resolve specific issues
of fact (whether the Enterprise’s SPAR application met the Fort Collins review criteria
and subsequent overturn of the City’s denial). See, First Amended Complaint, Exhibit 6,
Northern’s Technical Memorandum #2, pp. 1-5. See also, First Amended Complaint,
Exhibit 1, Resolution (acknowledging that the Board was overturning the denial of a
specific SPAR “application” by the Enterprise for specific “structures,” according to “site
specific plans” on specific parcels). The District’s August 12, 2021 overturn action was
not a “quasi-legislative” action.
Nevertheless, before making any decision regarding the nature of the August 12,
2021 “overturn” proceeding, the Court should examine the complete administrative
record. The Northern Defendants have yet to certify and file a complete administrative
record of the August 12, 2021 “overturn” proceedings. Thus, the Court is not fully able
to assess the Northern Defendants’ “quasi-legislative” argument and the Northern
Defendants’ request for dismissal of paragraph 59(i) is premature.4
4 Without citing any binding legal authority, the Northern Defendants also argue
that their actions must only satisfy a “rational” basis test. Motion, pp. 11 & 15. This
argument again relies on a finding that their August 12, 2021 actions were “quasi-
11
The Protected Property Interest Argument
The Northern Defendants then argue that Plaintiffs’ due process constitutional
claims should be dismissed because they do not have a “protected property interest.”
Motion, pp. 11-13. Actually, it is the Northern Defendants that lack any protected
property interest. This is not a case where Plaintiffs are attempting to limit development
of properties owned by the Northern Defendants. The Northern Defendants do not have
any property ownership interest in the relevant parcels. In contrast, Plaintiffs’ members
have actual pecuniary and public access interests in the parcels. Plaintiffs’ members paid
taxes to the City to acquire, maintain, and restore the parcels. First Amended Complaint,
p. 2, ¶ 4; p. 3, ¶ 6. Further, as public parks Plaintiffs’ members have access to the parcels
and regularly use the properties for recreation. First Amended Complaint, p. 3, ¶ 5. Any
disposition of the relevant parcels requires City Council approval—a process which
necessarily allows public participation by Plaintiffs’ members. First Amended
Complaint, Exhibit 9, p. 4. Plaintiffs’ First Amended Complaint adequately alleges
protected property rights to these public parcels. In contrast, it is the Northern Defendants
that have no protected property interests in the parcels.
The Hillside line of cases relied upon by the Northern Defendants involve federal
statutory claims for compensatory damages and attorneys’ fees under 42 U.S.C. § 1983.
The holding in Hillside line of cases is simply that the plaintiff “cannot successfully
assert a § 1983 claim” without proving a property interest related to the federal
legislative.” Further, the Northern Defendants’ Resolution D-1367-08-21 fails to
specifically state a “rational basis” for the decision to overturn the City’s denial of the
SPAR application. First Amended Complaint, Exhibit 1. Without such evidence, it is
premature for the Court to find that the Northern Defendants’ actions were “quasi-
legislative” and that there was a rational basis for the actions.
12
constitutional violation. Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1031 (Colo.
2002). Plaintiffs’ First Amended Complaint does not seek compensatory damages or
attorneys’ fees under 42 U.S.C. § 1983 and thus the Hillside line of cases are not directly
applicable.
However, decisions under 42 U.S.C. § 1983 can provide some guidance to the
Court. Constitutionally protected property interests may be created through common law
or statutes and regulations. Durland v. San Juan County, 340 P.3d 191, 199 (Wash.
2014). Statutes need not announce the “due process” interest, but must contain
“mandatory language” giving rise to a due process claim. Kentucky Department of
Corrections v. Thompson, 490 U.S. 454 (1989). With respect to land use permits, a
protected property interest arises when there are articulable standards that constrain the
decision-making process. Wedges/Ledges of Cal., v. City of Phoenix, 24 F.3d 56, 62 (9th
Cir. 1994). A protected property interest exists if decision maker discretion is
substantially limited. Braswell v. Shoreline Fire Dep’t, 622 F.3d 1099 (9th Cir. 2010).
Opponents, as well as proponents, of land use development can claim a property
interest in the denial of a land use permit. Durland, 340 P.3d at 200. Any distinction
between a permit applicant and a third party opponent “is of no consequence” to a due
process “protected property right” analysis. Hillside, 58 P.3d at 1031 (ftn. 6). Courts
have recognized that deprivation of civil liberties are injuries over which the judicial
system has jurisdiction. Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004) (citing
Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm’n, 620 P.2d 1051, 1058 (Colo.
1980). All Plaintiffs need to show is “whether the plaintiff has a claim for relief under the
constitution, the common law, a statute, or a rule or regulation.” Ainscough, 90 P.3d at
13
856. “A statutory or constitutional right to a non-arbitrary exercise of discretion… is all
that is needed for a legally protected interest.” Id. at 857.
In this case, the issue is whether the City Code and C.R.S. § 31-23-209 limit
discretion. First, the Section 2.2.7(A)(2) of the City Code grants “rights of all persons” to
contest issuance of a land use permit. First Amended Complaint, Exhibit 10, p. 15. This
is especially relevant in this case because it involves public parcels that Plaintiffs’
members helped pay for and over which they have access. Further, as noted above
C.R.S. § 31-23-209 contains mandatory language requiring the “governmental body” to
submit the SPAR application. The District did not submit the SPAR application and thus
Plaintiffs had a statutory right to denial of that application. Section 2.1.3(E)(1) of the
City Code also restricts discretion by requiring that a permit applicant “owns or operates”
the parcels in question. The Northern Defendants does not own or operate the relevant
parcels and thus Plaintiffs had a regulatory right to denial of the application. Under
Section 2.2.7(D)(2) of the City Code, a SPAR permit application determination must be
“based on its compliance with the Standards” of the City Code. First Amended
Complaint, Exhibit 10, p. 16. See also, Exhibit 10, p. 17 (City Code Section 2.2.8 “to
approve a development application, the decision maker must determine and find that the
development application has satisfied and followed the applicable requirements of this
Article 2 and complies with all of the standards required for the applicable development
application.”). The Planning and Zoning Board’s does not have discretion to approve a
SPAR application that fails to comply with the City Code and C.R.S. § 31-23-209.
Likewise, the District also does not have discretion to overturn a denial of a SPAR
application that did not comply with the City Code and C.R.S. § 31-23-209. The
14
District’s August 12, 2021 Resolution overturning the City’s denial of the SPAR
application fails to make any findings that the Enterprise’s SPAR application “has
satisfied and followed the applicable requirements…and complies with all of the
standards…” in the City Code and C.R.S. § 31-23-209. First Amended Complaint,
Exhibit 1.
Plaintiffs’ Bias Claim
As to Plaintiffs’ due process bias claim, Article XXIX(1)(c) of the Colorado
Constitution requires that local governments “avoid conduct that is in violation of their
public trust or that creates a justifiable impression among members of the public that such
trust is being violated.” Plaintiffs’ legally protected right to a fair and unbiased quasi-
judicial process is also confirmed in the case law. Churchill v. University of Colorado,
285 P.3d 986 (Colo. 2012 en banc); Canyon Area Residents v. Bd. of Cnty Comm’rs, 172
P.3d 905 (Colo.App. 2006); City of Manassa v. Ruff, 235 P.3d 1051 (Colo. 2010).
Paragraphs 59(g), 66(g) and 59(h), 66(h) are supported in the law because a legally
protected interest to a fair and unbiased quasi-judicial process is all that the law requires.
The Northern Defendants’ Motion to dismiss Paragraphs 59(g), 66(g) and 59(h),
66(h) should be denied and the issues should instead be fully briefed on the merits.
D. Paragraph 59(i) should not be dismissed.
Plaintiffs’ First Amended Complaint seeks a declaratory judgment that C.R.S. §
31-23-209 is unconstitutionally void for vagueness on its face because the law fails to
prescribe any due process procedures, standards, or criteria to be applied in a SPAR
overturn proceeding resulting in completely arbitrary, subjective, and uneven treatment of
due process rights of citizens affected by such a decision. First Amended Complaint, p.
15
12, ¶ 59(i). The Northern Defendants seek dismissal of paragraph 59(i) of the First
Amended Complaint by arguing that “void for vagueness” claims may only be asserted
against penal statutes. Motion, pp. 13-15.
The Northern Defendants’ argument can be easily rejected. “Civil as well as penal
enactments are subject to vagueness challenges.” Sellon v. City of Manitou Springs, 745
P.2d 229, 233 (Colo. 1987)(in the context of a civil land use proceeding)(citing Weissman
v. Board of Educ., 547 P.2d 1267 (1976)). A legislative land use enactment whose terms
are unduly vague violates the due process clause of the fourteenth amendment. Hartley v.
City of Colorado Springs, 764 P.2d 1216, 1226 (Colo. 1988)(a civil land use
proceeding)(citing Parrish v. Lamm, 758 P.2d 1356 (Colo. 1988).
The Northern Defendants then ask this Court to prematurely reach the merits of
Plaintiffs’ “void for vagueness” challenge by summarily arguing that “[t]he L&E Statue
is sufficiently definite….” Motion, p. 15. Tellingly, Northern’s argument never
examines the relevant language of the statute itself. The totality of the “overturn”
language in the L&E Statutes states, “[i]n 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.” C.R.S. §31-23-209. The Northern Defendants to not directly challenge
Plaintiffs’ claim that C.R.S. §31-23-209 fails to prescribe any due process procedures,
standards, or criteria to be applied in an SPAR overturn proceeding and thus violates the
Colorado Constitution by allowing the District to make arbitrary, subjective, and uneven
treatment of due process rights. People v. Nissen, 650 P.2d 547 (Colo. 1982). First
Amended Complaint, ¶ 58(i).
16
The allegations in the First Amended Complaint present a plausible claim that
there are no standards or criteria stated in C.R.S. §31-23-209 and thus it is void for
unconstitutional vagueness. The Northern Defendants’ Motion to dismiss Paragraphs
59(i) should be denied and the issues should instead be fully briefed on the merits.
E. Paragraph 60 should not be dismissed.
Paragraph 60 incorporates paragraphs 59(a), 59(b), 59(f), 59(g) and 59(h). For
the reasons stated above, the first sentence of paragraph 60 should not be dismissed.
Paragraph 60 also raises Plaintiffs’ facial/void for vagueness claim related to C.R.S. § 31-
23-209 claim found in paragraph 59(i). For the reasons stated above, the second sentence
of paragraph 60 should not be dismissed.
IV. CONCLUSION
For the reasons stated above, the Northern Defendants’ Motion should be denied
in its entirety. Plaintiffs request that the Court enter an Order directing the Northern
Defendants to file an Answer to all paragraphs of the First Amended Complaint.
Respectfully submitted this 15th day of October 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 Plaintiffs
17
CERTIFICATE OF DELIVERY
I hereby certify that on this 15th day of October 2021, a true and correct copy of
the foregoing Plaintiffs’ Response in Opposition to the Northern Defendants’ Motion
to Partially Dismiss First Amended Complaint was 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
Marni Nathan Kloster
Nick Poppe
Nathan Dumm & Mayer P.C.
MNathan@ndm-law.com
NPoppe@ndm-law.com
DEFENDANTS DISTRICT and ENTERPRISE- TROUT and RALEY
braley@troutlaw.com
Bennett Raley
pmontano@troutlaw.com
Peggy Montaño
dwert@troutlaw.com
Davis Wert
mkruse@troutlaw.com
Mirko Kruse
/s/ John M. Barth
John M. Barth