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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 - 039 - Motion To Partially Dismiss Larimer 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. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, NORTHERN INTERGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE, and THE CITY OF FORT COLLINS, a Colorado home rule city and municipal corporation, Defendants. Attorneys for Northern Colorado Water Conservancy District and Northern Integrated Supply Project Water Activity Enterprise: Bennett W. Raley, #13429 Peggy E. Montaño, #11075 William Davis Wert, #48722 Mirko L. Kruse, #52488 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, mkruse@troutlaw.com Case No. 21CV30425 DEFENDANTS NORTHERN COLORADO WATER CONSERVANCY DISTRICT AND NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE’S REPLY ON ITS C.R.C.P. 12(b)(5) MOTION TO PARTIALLY DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants, the Northern Colorado Water Conservancy District (“Northern Water”) and Northern Integrated Supply Project Water Activity Enterprise (“NISP Enterprise” and together “the Northern Parties”) submit this Reply to Plaintiffs’ Response in Opposition (“Response”) to DATE FILED: October 22, 2021 4:20 PM FILING ID: 7BF34BEDD8CDA CASE NUMBER: 2021CV30425 1 the Northern Parties’ C.R.C.P. 12(b)(5) Motion to Partially Dismiss Plaintiffs’ First Amended Complaint (“Motion”). INTRODUCTION Plaintiffs’ Response avoids directly addressing many of the points and authority raised in the Motion, electing instead to make arguments to distract from the issues at hand. This Reply responds to those arguments and establishes why, as a matter of law, Plaintiffs cannot sustain their claims relating to the Board of Northern Water’s (“Board”) actions under the Location and Extent Review Statute, C.R.S. § 31-23-209 (“L&E Statute”). ARGUMENT I. Northern Water’s Board Acted within Its Authority under the L&E Statute to Overrule Disapproval of the NISP Enterprise’s Application. A. Plaintiffs Misconstrue the Legal Standard under C.R.C.P. 12(b)(5). Plaintiffs contend that the Motion should be denied on the basis that Plaintiffs’ claims “present[] issues of first impression” and therefore “there is no substantive case law requiring dismissal of any of Plaintiffs’ claims.” Response at 3. In support of this argument, Plaintiffs point to a footnote in the Motion explaining that although there have not been judicial decisions interpreting the L&E Statute applicable to municipalities, there have been several persuasive decisions interpreting its sister statute that applies to counties, section 30-28-110(1)(a), C.R.S. See Response at 3 (citing Motion at 5 n.1). This argument is not a proper basis for avoiding dismissal of their claims. First, it is important to note that legal issues of first impression can be decided at the dismissal stage. Just because a certain legal issue is not controlled by directly “on point” precedent does not mean the reviewing court must defer a ruling on the issue until after the dismissal stage. See, e.g., Coyle v. State, 2021 COA 54, ¶ 1, 492 P.3d 366, 368 (affirming district’s courts dismissal 2 under C.R.C.P. 12(b)(5) deciding legal issue of first impression); Abu-Nantambu-El v. State, 2018 COA 30, ¶ 1, 433 P.3d 101, 102 (same). Additionally, as the Northern Parties noted in their Motion, the precedent interpreting the statute for counties should be authoritative as to this Court’s interpretation of the L&E Statute for municipalities. Most significantly, the statutes employ very similar language: [N]o road, park, or other public way, ground, or space, no public building or structure, or no public utility, whether publicly or privately owned, shall be constructed or authorized in the unincorporated territory of the county until and unless the proposed location and extent thereof has been submitted to and approved by such county or regional planning commission. § 30-28-110(1)(a). [N]o street, square, park or other public way, ground or open space, public building or structure, or publicly or privately owned public utility shall be constructed or authorized in the municipality or in such planned section and district until the location, character, and extent thereof has been submitted for approval by the commission. § 31-23-209. In addition, both statutes are implemented through, and referred to as, “location and extent” review processes. Compare City of Fort Collins Land Use Code (“LUC”) § 2.1.3(E) (describing the SPAR process to review the “location, character and extent” of projects “under section 31-23- 209, C.R.S.”) with Larimer County Land Use Code, § 6.4.4.B (outlining the procedure for “location and extent review in accordance with C.R.S. § 30-28-110”). And although the Supreme Court was applying the statute for counties in Hygiene Fire Protection District, the Court opined generally on the codification of the long-standing rule that political subdivisions may override “county or municipal” zoning regulations. Bd. of Cty. Com’rs of Cty. of Boulder v. Hygiene Fire Protection Dist., 221 P.3d 1063, 1068-69 (Colo. 2009) (emphasis added). Under the separate but very similar statutes governing the location-and-extent review processes for cities and counties, there is no basis to treat one differently than the other. Therefore, case law interpreting section 30-28-110(1)(a) is authoritative as to this Court’s interpretation of section 31-23-209 in ruling on the Motion. 1 B. Plaintiffs’ Response Does Not Contest That Northern Water’s Board is the Governing Body of the NISP Enterprise. Plaintiffs do not address the authority cited in the Motion explaining that the Board of Directors of Northern Water is the governing body of the NISP Enterprise and had the authority under the L&E Statute to overrule the Planning Commission. See Response at 5. Instead, Plaintiffs argue that their interpretation of the L&E Statute required Northern Water, not the NISP Enterprise, to submit the SPAR application. Id. Plaintiffs are incorrect. The L&E Statute contemplates the application being submitted by “the governmental body having jurisdiction” over the project. § 31-23-209. As its name suggests, the NISP Enterprise is the governmental body having jurisdiction over the development of NISP. See Amend. Compl., ¶ 16 (“NISP is a raw water development and pipeline project proposed by the Enterprise . . . .”). And NISP includes construction of the specific project at issue here, the Poudre River Intake and Pipeline. See Amend. Compl., ¶ 17. The L&E Statute then states that if the planning commission disapproves of the application, the decision to overrule that decision is made by “such governmental body.” § 31-23-209. In this instance, Northern Water owns the NISP Enterprise, see Amend. Compl. ¶ 11, and the Board of Northern Water governs the NISP Enterprise pursuant to the Water Activity Enterprises Act, § 37-45.1-103(3) (“The governing body of the water activity enterprise shall be the governing body of the district which owns the enterprise . . . .”); see also Bennett Bear Creek Farm Water & San. Dist. v. City & Cty. of Denver, 928 P.2d 1254, 1267 n.18 (Colo. 1996) (“Local governments are also empowered to establish water activity enterprises under control of the governing body of such ‘districts.’”). 2 C. The NISP Enterprise Did Not Need to Own or Operate Parcels Prior to its SPAR Submission. Plaintiffs continue to assert that SPAR requires the applicant to own or operate the parcels upon which the project will be constructed at the time the application is submitted. Response at 6. This requirement is simply not found in the LUC and Plaintiffs’ Response does little to refute the proper interpretation offered by the Northern Parties in their Motion. As the Northern Parties point out, and as Fort Collins has agreed, see Fort Collins’ Response to Plaintiffs’ Motion for Preliminary Injunction, the Fort Collins Municipal Code expressly states that when interpreting its provisions, the past tense must be interpreted to include the present and future tenses. Fort Collins Muni. Code § 1-2 (“Tense. Words used in the present or past tense include the future as well as the present or past.”). Therefore, the Plaintiffs erroneously attribute significance to the LUC’s usage of the past tense “owned or operated” to require that the NISP Enterprise needed to own or operate the parcel of land upon which the Poudre River Intake and Pipeline will be constructed at the time of the SPAR application. In addition, “owned or operated” does not modify “parcels” alone; it modifies the entire term “improvements to parcels.” This is clear because the LUC uses “improvements to parcels” to broadly capture any type of public project, that is, any type of man-made improvement to raw land, which is consistent with the LUC’s definition of “improvement.” See LUC § 5.1.2 (defining “improvement” to mean “any man-made, immovable item which becomes part of, is placed upon or is affixed to real estate”). As further support, “operated” naturally modifies “improvements to parcels” (i.e. projects) because one would not normally describe a “parcel” alone as something “operated.” Because “owned or operated” modifies “improvements to parcels,” it also becomes clear that “owned or operated” cannot take on the significance Plaintiffs attribute to it. These improvements are merely concepts at the time of their review under SPAR—they have not been 3 constructed. Yet Plaintiffs would require them to be “owned or operated” at the time of SPAR review. More naturally, the use of the past tense “owned or operated” was simply a default verb tense chosen by the drafters, sufficient to communicate the real requirement of this clause that only proposed improvements owned or operated “by public entities” may utilize the SPAR process. Other SPAR provisions in the LUC reaffirm that the import of this language was merely to clarify that only public projects qualify for SPAR review. Subsection 2.1.3(E)(2), entitled “Applicability,” simply states, “A Site Plan Advisory Review [SPAR] shall be applied to any public building or structure.” See also LUC § 2.16.2(C). Nowhere in the SPAR provisions of the LUC is it suggested that prior land ownership is a necessary pre-condition to filing an application. Also important is the fact that the L&E Statute itself contains no suggestion that the underlying land must be owned before location-and-extent review can proceed. § 31-23-209; see also Bd. of Cty. Comm’rs of La Plata Cty. v. Bd. of Adjustment of Durango, 768 P.2d 1250, 1251 (Colo. App. 1988) (noting simply that section 209 is applicable “to public buildings to be constructed or authorized.”); City of Boulder v. Hygiene, 221 P.3d 1063, 1067 (Colo. 2009) (explaining that location-and-extent review provides “an opportunity to review and approve or disapprove a proposed public project”). Plaintiffs’ Response does not attempt to rebut this reasoning and the much more sensible interpretation that section 209 was simply a default verb tense chosen by the drafters, sufficient to communicate the real requirement of this clause that only improvements owned or operated “by public entities” may utilize the SPAR process. See Response at 6-8. Instead Plaintiffs’ Response focuses on a preemption analysis, which the Court only needs to consider in the event Plaintiffs’ interpretation is accepted. Id. 4 D. Plaintiffs Incorrectly Assert the Board’s Action was Quasi-Judicial. In its First Amended Complaint, Plaintiffs raise several due process challenges to the Board’s decision to overrule the Planning Commission pursuant to the L&E Statute. Amend. Compl., ¶¶ 59(g), 59(h), 66(g) & 66(h). The Motion explains why these challenges fail as a matter of law because the Board’s action was quasi-legislative in nature and therefore does not implicate the procedural safeguards of due process. Motion at 8-11. In response, Plaintiffs disagree that this action was quasi-legislative. Response at 8-10. The Plaintiffs also assert that the Northern Parties’ position “stands in stark contrast” with their response to Plaintiffs’ motion for a preliminary injunction where Northern described the proceeding Plaintiffs’ sought to enjoin there as a “typical quasi-judicial proceeding.” Id. at 9. Plaintiffs overlook, however, that their original complaint and concurrent preliminary injunction motion were challenging a SPAR proceeding yet-to-be-held by the Planning Commission. See Plaintiffs’ Complaint, ¶ 87 (June 9, 2021); Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction at 9 (June 9, 2021). Their First Amended Complaint, by contrast, focuses not on the actions in the SPAR proceeding undertaken by the Planning Commission but on the actions in the August 12, 2021, proceeding undertaken by the Board. See Amend. Compl., ¶¶ 59(g), 59(h), 66(g) & 66(h). The Board’s decision to overrule the Planning Commission constituted a separate action taken by a separate governing body. That action was quasi-legislative in nature because the Board’s decision was inherently discretionary, policy driven, and forward-looking. See City and Cty. of Denver v. Eggert, 647 P.2d at 222 (noting that quasi-legislative action “requires the balancing of questions of judgment and discretion”). The Board’s decision did not apply pre- determined criteria set forth in the L&E Statute or second-guess the Planning Commission’s 5 decision under the LUC. The purpose of the decision made by the Board under the L&E Statute was to consider the feedback provided by the Planning Commission and ultimately decide whether the project should continue forward toward development. Plaintiffs’ Response does not distinguish Farmers Water Development Co. v. Colorado Water Conservation Board, where the Court similarly held that the Colorado Water Conservation Board’s (“CWCB”) decision to file an application to appropriate an instream flow right “to preserve the natural environment” was a quasi-legislative action because the decision involved a policy determination within the CWCB’s discretion. 2015 CO 21, ¶ 26, 346 P.3d 52, 59-60. Regardless, if the Court does not wish to rule on these grounds, it need not do so, because Plaintiffs’ due process challenges equally and independently fail because, as discussed in the next subsection, Plaintiffs have not alleged a constitutionally protected property interest. E. Plaintiffs Do Not Identify a Property Interest Protected Under Due Process and Do Not Distinguish Hillside Community Church. Plaintiffs have not alleged a constitutionally protected property interest and therefore their grievances cannot rise to the level of constitutionally redressable due process claims. Confusingly, Plaintiffs respond that the Northern Parties are the entities without a property interest. Response at 11. The Northern Parties do not raise a due process challenge in this litigation and therefore this contention is irrelevant. More to the point, Plaintiffs assert that their property interest stems from their status as taxpayers and their ability as members of the public to access and use some of the parcels that the Poudre River Pipeline would be constructed through for recreation.1 Id. These allegations fall far short of establishing a constitutionally protected property interest. 1 This argument resembles an argument that Plaintiffs’ have standing in this suit. Standing poses a separate (and lesser) hurdle that Plaintiffs are required to overcome. See Stanczyk v. Poudre School Dist. R-1, 2020 COA 27M, ¶¶ 40, 83-86, __P.3d __, __ (determining that teacher had 6 In general, protected property interests include physical property and certain entitled benefits. Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002). The property interest must be exclusive to the general public, as “[t]he hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law . . . .” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). As such, courts have routinely rejected purported property interests in the mere non-exclusive privilege to access and enjoy public lands and spaces. See Meyers v. City of New York, 812 Fed. App’x 11, 16 (2d. Cir. 2020) (holding that zoning laws granting access to public park “run to the public generally” and do not constitute protected property interests); Brown v. United States Forest Service, 465 F.Supp.3d 1119, 1128 (D. Or. 2020) (ruling that recreationist did not identify property interest in keeping roadway gate open to public areas used for recreation); Wayfield v. Town of Tisbury, 925 F.Supp. 880, 881 (D. Mass. 1996) (holding plaintiff had no property interest in access to public library). Therefore, Plaintiffs’ ability to access and recreate in Fort Collins Natural Areas—common to any member of the public—does not constitute private “property” that implicates the attendant guarantees in our state and federal constitutions protecting against deprivation without due process. Nor can Plaintiffs create “property” out of expectations for how the Board’s August 12, 2021, proceeding should have been conducted. See Hillside Cmty. Church, 58 P.3d at 1023 (“[P]rocedural guarantees stemming from state law or local ordinance do not create a constitutionally cognizable property interest.”). Plaintiffs attempt to distinguish Hillside Community Church and related court of appeals decisions by noting that the plaintiffs in those cases brought their due process claims under 42 U.S.C. § 1983, not C.R.C.P. 57. This is a standing to raise due process claim but no protected property interest to sustain it); Del. Riverkeeper Network v. Fed. Energy Reg. Comm’n, 243 F. Supp.3d 141, 150, 151 (D.D.C. 2017) (stating that “the threshold” to establish standing compared to a property interest “is lower”). 7 distinction without a difference. The elements needed to establish a due process violation remain the same regardless of the remedial device used to seek vindication of those rights in court. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (“The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’”). The requirement to assert a cognizable property interest clearly stems from the Due Process clause itself, not Section 1983. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (stating that Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution”). Plaintiffs go on to argue that property interests can be found where the government has limited discretion in whether to issue a permit or not, and Plaintiffs then connect this with certain mandatory and non-discretionary language in the LUC and the L&E Statute. Response at 12-13. On that basis, Plaintiffs apparently find a property interest. Id. at 13. It is true that state law can create protectable property interests in certain entitled benefits, and those entitlements are sometimes found where the government’s discretion in whether to deliver them or not are substantially limited. These entitlements may come in the form of public employment contracts or entitled benefits such as disability benefits. Adams Cty School Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990) (employment contract); Whiteside v. Smith, 67 P.3d 1240, 1247-48 (Colo. 2003) (disability benefits). But Plaintiffs stretch this precept to assert that the language in the LUC and L&E Statute somehow grants every citizen a property right in the enforcement of the procedures contained in those provisions. This argument once again attempts to create a “property right in mere procedure” and runs against the holding in Hillside Community Church. 58 P.3d at 1026. 8 F. Plaintiffs Do Not Establish the Vagueness Doctrine’s Applicability to the L&E Statute. Plaintiffs contend that the void-for-vagueness doctrine does not just apply to penal statutes but civil land use statutes as well, citing Sellon v. City of Manitou Springs, 745 P.2d 229, 233 (Colo. 1987) and Hartley v. City of Colorado Springs, 764 P.2d 1216, 1226 (Colo. 1988). Response at 15. The civil laws analyzed under the doctrine in those cases, however, imposed zoning regulations and governs the conduct of individuals; they were not merely statutes of procedure governing the powers of local governments. In addition, Plaintiffs’ Response does not address at all the separate and independent basis for why the void-for-vagueness doctrine does not apply here: Plaintiffs cannot challenge the L&E Statute’s vagueness with respect to the procedures it requires of the Board. People v. Graves, 2016 CO 15, ¶ 19, 368 P.3d 317, 325 (citing Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982)) (holding that a “litigant cannot complain of the vagueness of the law as applied to the conduct of others”). CONCLUSION For the reasons stated in the Motion and herein, this Court should partially dismiss Plaintiffs’ First Amended Complaint for declaratory and injunctive relief under C.R.C.P. 12(b)(5). As a matter of law, Plaintiffs are not entitled to relief for their claims challenging the Board’s action to overturn the Planning Commission’s disapproval pursuant to the L&E Statute. Under Rule 12(b)(5), the Court should therefore dismiss this portion of Plaintiffs’ claims, found in paragraphs 59(a), 59(b), 59(f), 59(g), 59(h), 59(i), 60, 66(a), 66(b), 66(f), 66(g), and 66(h) of their First Amended Complaint. 9 Respectfully submitted: October 22, 2021. TROUT RALEY ___/s/ Peggy E. Montaño Peggy E. Montaño, #11075 Bennett W. Raley, #13429 William Davis Wert, #48722 Mirko L. Kruse, #52488 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 mkruse@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. 10 CERTIFICATE OF SERVICE I certify that on October 22, 2021, a true and correct copy of the foregoing Defendants Northern Colorado Water Conservancy District and Northern Integrated Supply Project Water Activity Enterprise’s Reply on its C.R.C.P. 12(B)(5) Motion to Partially Dismiss Plaintiffs’ First Amended Complaint 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 Attorneys Office No Pipe Dream Corporations John McClain Barth John M Barth Attorney at Law Save the Poudre John McClain Barth John M Barth Attorney at Law S/ Britta Petersen 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