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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 - 040 - Order Granting Partial 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 ▲ Plaintiffs: Save the Poudre, et al. v. Defendant: City of Fort Collins, et al. Case Number: 2021CV30425 Courtroom: 5B ORDER GRANTING DEFENDANTS PARTIAL MOTION TO DISMISS This matter is before the Court because of Defendants Northern Colorado Water Conservancy District and Northern Integrated Supply Project Water Enterprise’s filing of a “Motion to Partially Dismiss Plaintiff’s First Amended Complaint” on September 28, 2021. The City of Fort Collins, a co-Defendant in this matter, does not take a position regarding the motion. See Def.’s Resp. Plaintiffs filed a response on October 15, and Defendants filed a reply on October 22. Having reviewed the Motion, response, reply, and all relevant evidence and applicable law, the Court finds and orders as follows: I. Background This case concerns the development of a river diversion plan on the Cache la Poudre river in Larimer County, Colorado. Plaintiffs are community organizations that enjoy the river and the natural spaces it touches. Defendants are: 1) the entities seeking to divert the river; and 2) the City of Fort Collins, Colorado (the “City.”) Specifically, 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 are organized according to Colorado Law. See C.R.S. § 37-45.1-103. DATE FILED: November 17, 2021 11:52 AM CASE NUMBER: 2021CV30425 2 The river diversion plan would create pipelines of water to new reservoirs. Pls. Compl. ¶17. Those reservoirs would bring additional water to several communities in and surrounding Larimer county. Id. ¶21. Plaintiffs are concerned 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. 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, citing a Colorado law, the District overruled the City’s SPAR decision on August 10, allowing the proposed river diversion to continue. Id. ¶39. Plaintiffs allege that the District’s actions in overturning the City’s SPAR denial violated the statute that authorizes that action and fundamental notions of due process. Plaintiffs asserts multiple grounds to support its request for declaratory relief. Defendants attack many, but not all, of those grounds in Defendants’ Motion.1 II. Applicable Law A. Motions to Dismiss A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted tests the formal sufficiency of a plaintiff’s complaint. Allen v. Steele, 252 P.3d 476, 481 (Colo. 2011). To survive summary dismissal for failure to state a claim, “a party must plead sufficient facts that, if taken as true, suggest plausible grounds to support a claim for relief.” Patterson v. James, 454 P.3d 345, 351 (Colo. App. 2018) (citing Warne v. Hall, 373 P.3d 588 (Colo. 2016)). When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), a court must accept all averments of material fact as true and view all allegations in the light most favorable to the plaintiff. Allen, 252 P.3d at 481. However, facts pleaded as legal conclusions are not entitled to the assumption that they are true. Scott v. Scott, 428 P.3d 626, 632 (Colo. App. 2018). A court may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference, and matters proper for judicial notice. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). 1 Plaintiffs also bring an alternative claim that is factually identical to their claim for declaratory judgment under C.R.C.P. 106(a)(4). The specific relief requested does not modify the Court’s analysis in any way. 3 B. Due Process The first question a court must answer in analyzing a due process claim is whether the plaintiff has been deprived of a “protected interest in liberty or property.” Whatley v. Summit Cnty. Bd. of Cnty. Com’rs., 77 P.3d 793, 798 (Colo. App. 2003) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). “It is necessary to consider whether a property right has been identified, whether government action with respect to that property right amounted to a deprivation, and whether the deprivation, if one is found, occurred without due process of law.” Id. (citing Hillside Community Church v. Olson, 58 P.3d 1021, 1027-28 (Colo. 2002)). “The parameters of protected property interests are largely established by state law. However, state laws establishing procedures related to the regulation of property cannot themselves create a protected property interest, as “there can be no property right in mere procedure.” Id. (citing Hillside, 58 P.3d at 1026) C. Overturning a Local Zoning Decision C.R.S. § 31-23-209 allows city and state entities to overrule a city zoning or planning commission if certain requirements are met. The relevant part of the statute provides: “If the public way, ground space, building, structure, or utility is one the authorization or financing of which does not, under the law or charter provisions governing the same, fall within the province of the municipal governing body, the submission to the commission shall be by the governmental body having jurisdiction, and the planning commission's disapproval may be overruled by said governmental body by a vote of not less than two-thirds of its membership. The failure of the commission to act within sixty days from and after the date of official submission to it shall be deemed approval.” III. Application of Law Defendants move to partially dismiss this suit. Specifically, Defendants move to dismiss grounds related to: 1) whether they followed the C.R.S. § 31-23-209 procedure in overturning the site plan advisory review decision; and 2) whether C.R.S. § 31-23-209 is unconstitutional.2 The Court begins by analyzing Defendants’ arguments surrounding whether they followed the proper statutory process, then addresses the Defendants’ arguments that the statute does not violate due process. 2 Because Defendants’ Motion is only a partial motion to dismiss, the Court limits its analysis to those grounds challenged by Defendants. 4 A. Statutory Process Plaintiffs argue that two statutory defects deprived the District of the legal authority to overturn the SPAR decision. First, Plaintiffs argue that because Defendants did not “own or operate” the property that was subject to a site review, they could not have undergone the review process. Id. ¶59(f). Second, Plaintiffs argue that the Enterprise was the wrong entity to submit a SPAR application to the City. Id. ¶59(b). Defendants argue that these allegations are based on incorrect interpretations of law, and that Plaintiffs fail to state a claim. The Court addresses each of these claims in turn. 1. Own & Operate Plaintiffs aver that because the Defendants did not have present possession of the land they wished to build on, they could not have overturned the SPAR decision.3 Id. ¶59(f). Defendants argue that the fact that they did not own or operate the land at the time of the SPAR review does not affect the later overturning of the SPAR denial. Def.’s Mot. 7. The “own or operate” language is from the Fort Collins Land Use Code. The specific section in controversy deals with the purpose and effect of the SPAR process: “The 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. In addition, with respect to public and charter schools, the review also has as its purpose, as far as is feasible, that the proposed school facility conforms to the City's Comprehensive Plan.” Fort Collins Land Use Code, § 2.1.3(E)(1) (emphasis added). The bolded section is the language in controversy. To Defendants, this language has no bearing on the ultimate decision to overturn the SPAR decision for two reasons: 1) Plaintiffs misinterpret the code; and 2) the land use code cannot preempt the statute used to overturn the SPAR decision, § 31-23-209. Def.’s Mot. 7-8. In their Response, Plaintiffs argue that the failure to meet the requirements for a SPAR permit deprives the District of “jurisdiction” to overturn the denial of a permit, and that the land use code is clear on its face and does not require the use of any outside interpretative guides. Pls. Resp. 4. 3 This allegation in the complaint asserts a legal conclusion, and therefore does not need to be treated as true for the purposes of a motion to dismiss. The Court assumes all factual allegations are true in analyzing this motion. 5 Even when viewing the alleged facts in the light most favorable to the Plaintiffs, the fact that the Defendants did not own the land before seeking a SPAR review does not have any bearing on the later decision to overturn the denial of a permit.4 § 31-23-209 does not condition the overturning of a city planning commission’s decision on any specific factors. It does not mention compliance with an applicable land use code. It merely conditions that two thirds of the district vote in favor of overturning the denial of a permit. See § 31-23-209. Accordingly, Plaintiffs contention is not supported by the plain text of the statute. Plaintiffs’ argument, if true, would also render the statute nearly meaningless. Read plainly, Plaintiffs argument would impart the rules of the SPAR process to the District’s overturn proceedings. Plaintiffs cite no authority and the Court finds no support in the text of the statute for this proposition. Accordingly, Plaintiffs’ assertion that the District lacked authority to overturn the SPAR decision without first owning or operating the land is without merit. 2. The Proper Entity Having Jurisdiction Plaintiffs argue that the District must have submitted the SPAR review. Plaintiffs allege that because the Enterprise submitted the SPAR application, the entire process was void because it violated C.R.S. § 31-29-209. Pls. Compl. ¶59(b).5 Plaintiffs look to the text of § 31-23-209, which reads: “[T]he submission to the commission shall be by the governmental body having jurisdiction, and the planning commission's disapproval may be overruled by said governmental body by a vote of not less than two-thirds of its membership.” Plaintiffs argue that the language of § 31-23-209 requires the same entity that submits the plan to the city to also overturn the plan. Pls. Compl. ¶59(b); Pls. Resp. 5-6. This contention seems to be grammatical, based on the phrase “said governmental body[.]” Defendants argue that Plaintiffs are misinterpreting the statute. To Defendants, Plaintiffs admit that the Enterprise is “the governmental body having jurisdiction” over NISP; and that the District was the governmental body with authority to overrule the SPAR decision. Def.’s Mot. 6-7; Def.’s Reply 3. Defendants also argue that the Enterprise is, statutorily, wholly controlled by the District and therefore Plaintiff’s argument is a distinction without difference. Id. Defendants assert that when the 4 The Court assumes, without deciding, that the Land Use Code requires present possession of the land. 5 This claim asserts only a legal conclusion, which does not have to be treated as true for the purposes of the Motion. 6 Enterprise submitted the SPAR application, it exercised power on behalf of the District. Id. The Court agrees with the Defendants. The Court’s conclusion in this respect is based on two equal and independent holdings. First, Plaintiff’s argument that the District must be the party to submit the SPAR application is not supported by the plain text of § 31-23-209. Second, the statutory scheme that authorizes the creation of the enterprise establishes that the Enterprise acts on behalf of the District. The Court expands on each holding in turn. The Statute specifies that the submission to the zoning board is to be made by a governmental body having jurisdiction over the plan. Plaintiffs argue that an Enterprises’ status as a business renders it incapable of being a “governmental body” in § 31-23-209. However, water enterprises are “any government water activity business owned by a district. . . .” C.R.S. § 37-45.1-102(4). Plaintiff’s complaint recognizes that the Enterprise is the entity authorized to construct the project, thus having jurisdiction. Pls. Compl. ¶16-17.6 The Statute is silent as to any other requirement regarding the identity of the parties. The statute does not specify that the submitting and reviewing entity must be the same entity. The statute does not specify that the entities must be distinct. The textual constraints only require the submitting party to be “governmental” and to have “jurisdiction” over the project. Accordingly, because the Enterprise is the “governmental body having jurisdiction” over NISP, they were a proper party to submit the SPAR application to the city. Plaintiffs ask to Court to impose a requirement not found in the statute. See People v. Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009) (holding that courts “must accept the General Assembly's choice of language and not add or imply words that simply are not there.”) Accordingly, Plaintiffs’ assertion that the Defendants are without power to overturn the SPAR denial because the Enterprise and not the District submitted the application is without merit. 6 In their response, Plaintiffs seemingly contend that an entity must have jurisdiction over the authorization and financing of the project in order to submit a SPAR application. Pls. Resp. 5. This states a legal conclusion arising from a misreading of the statute. See § 31-23-209, Supra 3. The reference to “authorization and financing” in the statute refers to the authority of the city, not the state governmental entities. The first sentence of § 31-23-209 refers to scenarios where a city would overrule its own planning and zoning commission. The second refers to scenarios outsid e of the city’s “province.” The distinction between either scenario is whether the city has authorization or financing over the subject matter. The statute does not impose a requirement of control over the “authorization or financing” upon a “governmental body”, and instead uses the broader word “jurisdiction.” 7 B. Due Process Plaintiffs’ mount three challenges to § 31-23-209’s constitutionality: 1) that the statute fails to provide adequate procedural due process; 2) that the commissioners of the district held an impermissible bias in favor of NISP; and 3) that the statute is unconstitutionally vague. Defendants argue that each of these claims must be dismissed. Defendants’ primary argument is that the Plaintiffs lack the requisite liberty or property interest to support a due process claim. In response, Plaintiffs argue that they do have a protected property interest in this matter, citing their past paid taxes used to maintain the land in question, and their asserted right to public access of the public parcels. Pls. Resp. 11. Plaintiffs also argue that the District is sufficiently restricted in their discretion to create a procedural due process interest. 1. Procedural Due Process & Bias Plaintiffs allege that the Statute exhibits two initial due process defects, as applied to them. Pls. Compl. ¶59(g)-(h). First, Plaintiffs argue that the Statute fails to provide adequate procedural due process to interested parties. Id. Second, Plaintiffs argue that the Board’s members exhibited bias in overturning the SPAR decision.7 Id. Defendants respond by arguing that Plaintiffs do not have the liberty or property interest required to raise a due-process challenge. Relying on Hillside Community Church v. Olson, Defendants argue that Plaintiff’s interest in the procedure of a decision to overturn the SPAR denial does not qualify as a protected liberty interest or property. 58 P.3d at 1026. Plaintiffs assert that Hillside and its progeny are inapplicable, as those cases were brought under 42 U.S.C. § 1983. Plaintiffs also argue that they do have a protected property interest in the Dist rict’s procedure of overturning a local government’s land use decision. Plaintiffs cite to a line of § 1983 cases which, to them, establish a groundwork for finding that they have a 7 Plaintiffs assert that they have a liberty interest in “fair and unbiased quasi -judicial process”, citing Churchill v. University of Colorado and other cases. Pls. Resp. 14; 285 P.3d 986 (Colo. 2012). Plaintiffs do not explain how those cases support their argument. Nevertheless, the Court has examined the authority Plaintiffs advance. None of the cases cited by Plaintiffs establish a liberty or property interest in the appearance of bias in proceedings a party was not a part of. Assuredly, a professor facing a termination hearing is entitled to a neutral arbiter. A worker’s compensation claimant denied benefits is entitled to a neutral arbiter. Both of those plaintiffs have clear due process interests precedent to the bias claim. Plaintiffs, who were not a party to the review procedure, and who do not own the property in question, do not. 8 property interest. Plaintiffs’ argument is a daisy chain of several individual propositions. The Court restates each for clarity. Plaintiffs argue that the Fort Collins land use code creates a property interest in the denial or grant of a SPAR application. Plaintiffs’ support for this alleged property interest is found in the alleged requirements that: 1) only entities that own or operate a parcel of land may receive a SPAR permit; and 2) that any SPAR application is subject to article two of the land use code. Plaintiffs then tie the alleged property interest in the land use code to § 31-23-209, arguing that § 31-23-209 is subject to compliance with SPAR requirements.8 Plaintiffs also argue that to § 31-23-209 limits the District’s discretion because it allegedly requires the proceeding to be brought by a “governmental body.” Defendants argue that Plaintiffs’ property interest is more accurately described as “a mere non-exclusive privilege to access and enjoy public spaces” and a “property right in mere procedure” against Hillside. The Colorado Supreme Court has set the appropriate test to apply: “Like the right to certain procedures, the right to certain outcomes has been extensively litigated in the land use context, albeit usually in regard to the failure of a zoning department to grant a permit or license. . . If the decisionmaker is granted a broad range of discretion, the applicant is seeking neither an interest that he or she has already acquired nor a claim upon which he or she should rely, regardless of the characterization of the process involved.” Hillside, 58 P.3d at 1028 (quoting Jacobs, Visconi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1117 (10th Cir, 1991); citing (Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d. Cir. 1985)) The Court agrees with the Defendants. § 31-23-209 grants the District a “broad range of discretion” when determining whether to overrule a local commission. The only textual restraint on the District’s discretion is that the vote must be confirmed by “not less than two-thirds of its membership.” The statute does not require the District to make any findings of fact. The statute does not require the District to apply any analytical framework in making their decision. The statute does not provide a standard of review. The District’s decision is not sufficiently cabined to create a property interest. 8 This Court has already dismissed Plaintiffs’ statutory claim predicated on this argument, holding that it is an incorrect interpretation of the statute. Supra, 4-5. 9 The Court is not convinced that the land use code is directly imputed into § 31-23- 209’s text, either. As analyzed above, there is no textual basis for this argument in the statute. Plaintiffs do not have a property interest in the procedures of the District’s overturning of the City’s SPAR decision. Neither do Plaintiffs have an individualized property interest in the non-exclusive, public right to enjoy the land touched by the river diversion. “The hallmark of property, [the Supreme Court] has emphasized, is an individual entitlement grounded in state law. . . .” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). Plaintiffs’ bald assertion that an ability to enjoy the park leads to a protected property interest is unconvincing. See, e.g. Meyers v. City of New York, 812 F. App’x 11, 16 (2d. Cir. 2020) (holding that rights which run to the public generally are not actionable under due process) (summary order). Plaintiffs’ alleged right to access lands which may be touched by NISP is not sufficiently individualized to be a protected property interest.9 Accordingly, Plaintiffs’ due process claims based on procedural defects and bias are dismissed. 2. Vagueness Plaintiffs’ final due process contention relevant to the Motion is that § 31-23-209 is unconstitutionally vague. Pls. Compl. ¶59(i). Specifically, Plaintiffs argue that the statute is vague because “because the law fails to prescribe any due process procedures, standards, or criteria to be applied in a SPAR overturn proceeding. . . .”10 Id. Defendants raise three arguments to support their motion to dismiss: 1) that Plaintiffs do not have a constitutionally protected property or liberty interest to challenge the statute for vagueness; 2) that vagueness only invalidates penal statutes; and 3) that Plaintiffs may not assert claims of vagueness regarding the conduct of others. Def.’s Mot. 11, 13. The Court only reaches the first argument. Vagueness challenges are due process claims, stemming either from the federal constitution or a state constitution. See Johnson v. United States, 576 U.S. 591, 596 (2015). This is because vagueness claims challenge whether a statute gives proper notice. Id. Accordingly, “[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty.” Whatley v. Summit 9 Plaintiffs’ contention that a property interest exists in the city council’s requirement of public participation in disposition of the relevant land fails on the same grounds. The right to speak at public comment runs to the public, not the individual Plaintiffs. The same is true of Plaintiffs’ argument that their status as taxpayers creates a property interest in property they do not own. There is nothing individualized about Plaintiffs’ taxpaying that creates a property interest in this matter. 10 The Court notes that Plaintiffs’ vagueness claim is more accurately construed as a repeat of their procedural due process claim. Generally, vagueness claims allege that words in a statute are vague. Plaintiffs’ does not. 10 Cnty. Bd. Of Cnty. Comm’rs, 77 P.3d 793, 798 (Colo. App. 2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)) (cleaned up); See also West v. Kentucky Horse Racing Comm’n., 425 F. Supp. 3d. 793, 806 (E.D. Ky. 2019) (aff’d 972 F.3d 881 (6th Cir. 2020)). As analyzed above, Plaintiffs have not alleged a proper liberty or property interest in their complaint. Accordingly, their vagueness assertion is without merit. IV. Order Plaintiffs’ grounds for its claim for declaratory relief that the District’s overturning proceeding is void because they did not own or operate the NISP property are dismissed. Plaintiffs’ grounds for its claim for declaratory relief that the District’s overturning proceeding is void because the Enterprise submitted the SPAR application are dismissed. Plaintiffs’ grounds for its claim for declaratory relief that the District’s overturning proceeding violated their due process rights are dismissed because they do not have a protected liberty or property interest in that proceeding. Defendants’ Motion is granted in full. Defendants’ Answer and Reply to the Cross-Claim are due within 14 days. Dated: November 17, 2021 BY THE COURT: __________________________ Gregory M. Lammons District Court Judge