HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 021C - Exhibit C - Havis First Amended ComplaintLarimer County District Court
Larimer County, Colorado
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
NO LAPORTE GRAVEL CORP,
ROBERT HAVIS,
and
PETER WAACK,
Plaintiffs
v.
BOARD OF COUNTY COMMISSIONERS
OF LARIMER COUNTY (including all of the individual
Commissioners in their official capacities: Chair Tom
Donnelly, Steve Johnson, John Kefalas)
and
LOVELAND READY-MIX CONCRETE, INC.
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
Attorney Registration #: CO 22957
Case Number: 2019CV30123
Division 3B
FIRST AMENDED COMPLAINT FOR RELIEF UNDER C.R.C.P.
106(a)(4) AND FOR DECLARATORY RELIEF
________________________________________________________________________
DATE FILED: March 27, 2019 7:51 AM
FILING ID: 2BA782ABF251E
CASE NUMBER: 2019CV30123
EXHIBIT C
DATE FILED: October 23, 2020 12:08 PM
FILING ID: 577B70D840207
CASE NUMBER: 2020CV30580
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Plaintiffs No Laporte Gravel Corp, Robert Havis, and Peter Waack (collectively,
“Plaintiffs”), through counsel John M. Barth, submit this First Amended Complaint
pursuant to Colorado Rule of Civil Procedure (“C.R.C.P.”) Section 57 and Section
106(a)(4) against the Defendant the Board of County Commissioners of Larimer County
(including all of the individual Commissioners in their official capacities, Chair Tom
Donnelly, Steve Johnson, and John Kefalas)(“the Board” or “BOCC”) and Loveland
Ready-Mix Concrete, Inc. (“LRM”) challenging the Board’s January 15, 2019 issuance
of the written “Special Review Findings and Resolution (“F&R”) Approving the Petition
of Loveland Redi-Mix Concrete, Inc.’s.”
NATURE OF THE CASE
1. This is an action under C.R.C.P. 57 seeking declaratory relief and under
C.R.C.P. 106(a)(4) seeking review and reversal of the F&R.
2. Plaintiffs initially seek declaratory relief from the Court with respect to the
unlawfulness of the Larimer County’s use by special review process. Plaintiffs bring a
facial constitutional challenge to provisions of the Larimer County Land Use Code
(“Code”) related to this process because they are unconstitutionally vague and provides
the Board limitless discretion to elevate the rights of one landowner to the detriment of
all others through spot zoning in contravention of Colorado law. The Code also fails to
include sufficient safeguards with respect to the Board’s actual or apparent conflicts of
interest. The Code fails to require recusal from quasi-judicial proceedings in instances
where a Commissioner has received substantial campaign contributions from a land use
applicant while its application is pending before the Board. Plaintiffs also bring an “as
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applied” constitutional challenge to the application of provisions of the Code to this land
use application.
3. Plaintiffs also seek this Court’s review pursuant to C.R.C.P. 106(a)(4)
because the Board abused its discretion in approving LRM’s proposed gravel mine and
concrete batch plant currently zoned “Open” and currently used for agricultural and
residential purposes. The only competent evidence in the administrative record and
presented at the Board hearing confirmed that LRM’s proposed industrial use is
incompatible and out of harmony with the numerous single and multi-family residences
surrounding the Proposed Site which is located in the heart of LaPorte, Colorado. LRM
further failed to meet its burden to demonstrate that the proposed gravel mine and
concrete batch plant will not have a substantial adverse impact on property in the vicinity
of the proposed site. Further, the Board exceeded its jurisdiction relying on improper
criteria for approval and by allowing Commissioner Donnelly to cast the deciding vote on
the application despite his actual and apparent conflict of interest with regards to this
quasi-judicial land use decision.
JURISDICTION AND VENUE
4. The Proposed Site is located along County Road 54G in the heart of
LaPorte, unincorporated Larimer County, Colorado.
5. The Findings and Resolution being contested was issued by the Larimer
County Board of County Commissioners on January 15, 2019.
6. The January 15, 2019 F&R constitutes the Board’s final action on
Loveland Ready-Mix Concrete, Inc.’s Special Review Application (“Application”)
pursuant to C.R.C.P. 106(a)(4).
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7. This action was timely filed within twenty-eight days of the issuance of
the January 15, 2019 Findings and Resolution.
8. Jurisdiction is proper in this Court pursuant to C.R.C.P. §106 and
C.R.C.P. §57. See Margolis v. Dist. Court, 638 P.2d 297, 305 (Colo. 1981) (explaining that
land use decisions are quasi-judicial in nature and therefore subject to review pursuant to
C.R.C.P. 106).
9. Venue is proper before this Court pursuant to C.R.C.P. § 98(a) because
this is an action affecting real property in Larimer County, Colorado.
10. The C.R.C.P. 106 claim in this First Amended Complaint is ripe because
the Plaintiffs participated in all aspects of the permitting process, including submission of
written comments as well as presentation of oral testimony during the various hearings.
All issues presented in the C.R.C..P. 106(a)(4) claim in this First Amended Complaint
were raised during the permitting process and thus are ripe for review by this Court.
11. Plaintiffs have standing to bring these claims because Plaintiffs and/or its
members live in close proximity to the Proposed Site and will be adversely impacted by
noise, air pollution, traffic, risks of water pollution, groundwater mounding, property
damage, loss of business income, diminution of property value or loss of appreciation, the
unconstitutionality of the Code, as well as violations of their due process rights. These
injuries are causally connected to the Board’s issuance of the F&R. The injuries
complained of by Plaintiffs can be remedied by an order from this Court reversing,
vacating, and/or remanding the Board’s decision.
THE PARTIES
12. Defendant the Larimer County Board of County Commissioners is the
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governing body of a political subdivision of the State of Colorado with a principal
address at 200 West Oak, Suite 2200, Fort Collins, Colorado. Pursuant to the Code, the
Board is responsible for reviewing and rendering a quasi-judicial determination on
applications for Use by Special Review (“USR”). The Commissioners Tom Donnelly,
Steve Johnson, John Kefalas are also named as defendants in their official capacity as
members of the Board.
13. Defendant Loveland Ready-Mix Concrete, Inc. is a Colorado corporation,
as well as the applicant and permittee of the F&R issued by the Board on January 15,
2019.
14. Based on information and belief, LRM possesses a property interest in the
seven parcels comprising 123 acres at the Proposed Site.
15. Page 1 of the F&R indicates that it was issued to an entity named
“Loveland Redi-Mix Concrete, Inc.” This is not the same corporate entity that applied
for the Special Review Permit, which was Loveland Ready-Mix Concrete, Inc. Based on
information and belief, there is no Colorado corporate entity that exists with the name
“Loveland Redi-Mix Concrete, Inc.”
16. Plaintiff No Laporte Gravel Corp (“NLGC”) is a Colorado Non Profit
membership corporation based in LaPorte, Colorado. NLGC’s purpose is to protect
LaPorte and its residents from adverse impacts from gravel mining operations, concrete
batch plant operations, and related industrial activities in the La Porte planning area.
NLGC’s members own homes, buildings, and properties in close proximity to the
Proposed Site and are adversely impacted by issuance of the F&R. In some instances,
these properties are immediately adjacent to and/or within approximately 300-500 feet
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from the proposed Project. Some of the NLGC members have asthma and other medical
conditions that could be exacerbated by dust, industrial, and heavy vehicle emissions
from the Project. The proposed Project will adversely impact the members of NLGC by
imposing unwanted noise, traffic, dust, reduced property values and/or diminished home
appreciation, loss of business income, and aesthetic harm on the owners and occupants of
the properties.
17. Plaintiff Robert Havis is an individual, homeowner, and resident of
LaPorte and is personally adversely impacted by the issuance of the F&R by the Board.
Mr. Havis regularly passes by the Proposed Site on a daily basis. Mr. Havis will be
adversely impacted by noise, traffic, dust, reduced property values and/or diminished
home appreciation, and aesthetic harm. Mr. Havis is a Board member of NLGC.
18. Plaintiff Peter Waack is an individual, homeowner, and resident of
LaPorte and is personally adversely impacted by the issuance of the F&R by the Board.
Mr. Waack can see the Proposed Site from his property and regularly passes by the
Proposed Site on a daily basis. Mr. Waack will be adversely impacted by noise, traffic,
dust, reduced property values and/or diminished home appreciation, and aesthetic harm.
Mr. Waack also has a water well on his property that could be adversely impacted by the
gravel mining. Mr. Waack is also a Board member of NLGC.
STATEMENT OF LAW AND STANDARD OF REVIEW
19. The land use law applicable to lands located in unincorporated Larimer
County is set forth in the Larimer County Land Use Code.
20. The Code provides that lands with “Open” zoning designations are
principally used for agricultural and residential uses. Code § 4.1.5.
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21. In limited, special circumstances, the Code provides that land within
“Open” zoning may be used for more intense land uses, including mining. Id at (45).
Mining is expressly described as an “Industrial use. Id.
22. In order to engage in mining within “Open” zoning, a landowner must
receive approval from the County for a “use by special review.” Id; see also Code §4.1.5.
(denoted with an “S”).
23. Ultimate authority to approve or deny a USR is vested in the Board
subject to special review criteria. Code § 4.5.3.
24. A USR applicant bears the burden of proof to provide the Board with
competent evidence that a proposed USR will:
a. “[B]e compatible with existing and allowed uses in the
surrounding area and be in harmony with the neighborhood”, Code § 4.5.3(a); and
b. “[Not] result in substantial adverse impact on property in the
vicinity of the subject property.” Code § 4.5.3.(D).
25. The Code defines “compatible” as “[h]aving harmony in design and
appearance, use and/or function with natural systems and/or existing land uses in an
area.” Code § 0.1.1.
26. The Code does not define “harmony with the neighborhood” or
“substantial adverse impact.”
27. The Code requires that a Commissioner, in his or her “sole discretion”,
recuse himself or herself from any quasi-judicial decision if he or she “believe[s] they
have a conflict of interest or for any other reason believes that they cannot make a fair
and impartial decision.” Code § 2-67(10). The Code also states that Commissioners,
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must avoid any conflict of interest and that all official actions “must represent
unconflicted loyalty to the interest of the citizens of the entire county.” Code § 2-71.
28. The Code does not specifically address, or otherwise specifically prohibit,
a Commissioner from participating and voting in a quasi-judicial hearing on a land use
application in instances where the applicant made substantial campaign donations to the
Commissioner while the land use application was pending.
29. In this court, government actions are reviewed pursuant to C.R.C.P. §
106(a)(4) for an abuse of discretion. See generally, Churchill v. Univ. of Colo. at
Boulder, 285 P.3d 986 (Colo. 2012); Hewitt v. State of Civil Serv. Comm., 167 P.2d 961,
963 (Colo. 1946); Gallegos v. Garcia, 155 P.3d 405 (Colo. App. 2006); Venard v. Dept.
of Corr., 72 P.3d 446 (Colo. App. 2003).
30. A government action taken in violation of applicable law constitutes a per
se abuse of discretion. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004).
31. A government abuses its discretion when its decision is not reasonably
supported by competent evidence within the administrative record. Freedom Colo. Info.,
Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 899-900 (Colo. 2008).
32. A quasi-judicial decision must provide for due process and adhere to
fundamental principles of fairness. Churchill, 285 P.3d 986; see also Canyon Area
Residents v. Bd. of Cnty Comm’rs, 172 P.3d 905, 908 (Colo. App. 2006).
STATEMENT OF FACTS
The gravel mine
33. LRM seeks to conduct gravel mining on seven parcels comprising 123
acres zoned “Open” in downtown LaPorte, Colorado.
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34. The F&R incorrectly and arbitrarily states that the existing zoning for the
seven parcels at the Proposed Site is “C-Commercial & O-Open” instead of just “Open.”
35. The seven parcels at the Proposed Site are currently used for grazing cattle
and horses and for hay production. There is no evidence that the Proposed Site has ever
been used for anything other than residential and agricultural uses.
36. Twenty-six parcels abut the Proposed Site. Five abutting properties to the
north and northwest are used for agricultural purposes; seventeen properties are single
family residential, one is multifamily residential, and three are commercial.
37. None of the abutting properties are zoned industrial.
38. None of the abutting properties are currently used for gravel mining or
concrete batch plants.
39. The F&R allows gravel mining at the Proposed Site from 7:30 am – 5:00
pm Monday through Friday for a 12-year period.
The concrete batch plant
40. LRM’s Special Review Application states, “[t]he project includes a
concrete batch plant as central to proposed operations”.
41. LRM’s Application sought, and received, approval to operate the concrete
batch plant 6-days per week, 12 hours per day (Monday through Friday) and 24-hours a
day under some circumstances. In contrast, LRM stated in the public hearing that the
gravel mine would only operate 2-3 days per week, approximately 9 hours per day.
42. The F&R approves 366 average daily trips per/day the majority of which
would be concrete trucks being filled at the concrete batch plant, delivering the concrete
to construction sites, and then returning to be re-filled for another delivery.
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43. LRM’s Sketch Plan states, “[a]fter mining cease on the property, LRM
proposes to continue concrete batch plant operations with aggregates delivered from off-
site, to-be-determined sources.”
44. LRM’s March 2018 Second Submittal states, “[t]he project’s mine life is
estimated at 10 years, depending on economic conditions” (emphasis added) but is silent
on the life of the concrete batch plant.
45. LRM’s proposal to continue use of the concrete batch plant beyond the life
of the gravel mine was not formally withdrawn in writing in LRM’s March 2018 Second
Submittal Application.
46. The F&R states that “[a]ll mining shall be completed no later than 12
years from the first material hauled from the site” (emphasis added). However, there is no
language in the F&R requiring cessation of concrete batch plant activities upon
completion of gravel mining.
47. LRM’s Application states that the batch plant would import “dry cement,
delivered from off-site suppliers” in order to produce concrete. The Application also
states that LRM would import the following offsite materials for concrete production:
“concrete admixtures, fly ash, [and] calcium chloride.”
48. LRM is unable to produce concrete solely with materials mined on-site
because cement is required to produce concrete and cannot be mined or produced on-site.
49. The F&R approves construction and operation of a concrete batch plant as
an accessory use to the gravel mining operation at the Proposed Site. The proposed
concrete batch plant is the central use of the property, not an accessory use, and is
allowed to continue operating after end of gravel mining.
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50. Section 4.3.10 of the Larimer County Code (”LUC”) states:
“Accessory uses and structures are intended to allow property owners the full use
of their property while maintaining the integrity and character of the
neighborhood. To accomplish these goals, accessory uses and buildings must be
erected and used only for purposes that are clearly secondary and incidental
to the principal use of the property and must be located on the same lot with
the principal use.” (emphasis added).
51. Based on information and belief, the proposed concrete batch plant is not
located on the same lot as all proposed gravel mining. The concrete batch plant would not
maintain the integrity or character of the neighborhood.
52. Section 4.3.7. E of the LUC states that accessory gravel mining uses are
limited to “[o]n-site processing of mined materials…” (emphasis added). The proposed
concrete batch plant would process unmined offsite materials, including but not limited
to cement, fly ash, and concrete additives.
53. The Code defines the accessory uses allowed on “rural occupation” lots,
which is defined as lots “outside a Growth Management Area Overlay zoning district”
and zoned “O-Open.” Code § 4.3.10.P. The term “accessory rural occupation” includes
“[a] use conducted as a customary, incidental, and accessory to a single family dwelling
or an agricultural use.” Id. The proposed concrete batch plant is not customary,
incidental, and accessory to a single family dwelling or agricultural use.
54. The Larimer County Code prohibits “general industrial uses”, including
concrete batch plants, as “accessory rural occupation” uses on lots zoned Open. Code §
4.3.10.P.4. The term “general industrial uses” is defined in the Code to include “concrete
batch plants.” Code § 0.1.1.
The Noise Ordinance
55. As part of the permitting process, LRM submitted a Noise Evaluation
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Report. In its Noise Evaluation Report, LRM sought approval to emit noise from the
Proposed Site resulting from the following so-called “construction activities”:
• Overburden/topsoil removal from the active mining footprint (estimated to
be 10-acres at any one time) and stockpiling
• Placement of berms on the west, southern and eastern portions of the Site
to relieve potential noise and visual impacts
• Preparation and planting of berms and surrounding areas with dryland
pasture grasses and trees to mitigate potential visual, noise, and dust issues
• Access road construction
• Concrete batch plant construction including site grading and building of
structures.
56. With regard to this construction noise, LRM’s Noise Evaluation Study
also states, “[o]verburden removal and stockpiling will take place periodically
throughout the mine life as new areas are opened for mining.”
57. Larimer County has a Noise Ordinance No. 97-03. The Ordinance
contains a residential noise limit ranging from 50db-55db. The Ordinance also includes a
louder noise limit for “construction activities” of 75 db from 7pm-7am and 80 db from
7am-7pm. The Noise Ordinance defines the term “construction activities” as being
limited to, “any and all activity incidental to the erection, demolition, assembling,
alteration, installation or equipping of buildings, structures, roads or appurtenances
thereof, including land clearing, grading, excavating, and filling” (emphasis added).
58. The Board’s issuance of the F&R allows LRM to exceed residential noise
limits from overburden and stockpiling activities that are not incidental to the erection,
demolition, assembling, alteration, installation or equipping of buildings, structures, roads
or appurtenances thereof.
State master plan requirements for extraction of commercial mineral deposits.
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59. Colorado law requires counties to: “develop a master plan for the
extraction of such [commercial mineral] deposits.” C.R.S. §34-1-304.
60. Under State law the commercial mineral deposit master plan
“shall consist of text and maps. In developing the master plan, the planning
commission shall consider, among others, the following factors: (a) Any system
adopted by the Colorado geological survey grading commercial mineral deposits
according to such factors as magnitude of the deposit and time of availability for
and feasibility of extraction of a deposit; (b) The potential for effective multiple
sequential use which would result in the optimum benefit to the landowner,
neighboring residents, and the community as a whole;
(c) The development or preservation of land to enhance development of
physically attractive surroundings compatible with the surrounding area; (d) The
quality of life of the residents in and around areas which contain commercial
mineral deposits;
(e) Other master plans of the county, city and county, city, or town; (f)
Maximization of extraction of commercial mineral deposits; (g) The ability to
reclaim an area pursuant to the provisions of article 32 of this title; and, (h) The
ability to reclaim an area owned by any county, city and county, city, town, or
other governmental authority or proposed, pursuant to an adopted plan, to be used
for public purposes by such a governmental authority consistent with such
proposed use.”
C.R.S. §34-1-304.
61. The County did not have a compliant commercial mineral deposit master
plan at the time it issued the F&R. More specifically, to date the County has failed to
adopt a master plan for extraction of commercial mineral resources that:
a. maps its “commercial mineral deposits” as defined in C.R.S. 34-1-302(1);
b. grades its commercial mineral deposits;
c. analyzes the potential for effective multiple sequential use which would result
in the optimum benefit to the landowner, neighboring residents, and the
community as a whole;
d. analyzes the development or preservation of land to enhance development of
physically attractive surroundings compatible with the surrounding area;
e. plans to ensure the quality of life of the residents in and around areas which
contain commercial mineral deposits; and,
f. analyzes the ability to reclaim an area for public purposes.
The Due Process and Conflict of Interest Violations
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62. Loveland Ready-Mix Concrete, Inc. is a Colorado corporation owned and
operated by the Fancher family. Based on information and belief, Brad Fancher and
Stephanie Fancher are officers, directors, owners, and/or employees of the corporation.
Both Brad Fancher and Stephanie Fancher testified before the Board on behalf of LRM
and in support of the Application.
63. Commissioner Donnelly was last elected to the Board in 2016. During the
2016 campaign cycle, the Fancher family made significant financial contributions to the
Donnelly County Commissioner campaign. More specifically, the Fancher family
collectively made $2,700 in financial contributions to the Donnelly campaign in 2016
that are detailed below:
Steve Fancher $1,500
Brad Fancher $1,000
Stephanie Fancher $ 200
Based on information and belief, employees of Loveland Ready-Mix, and/or individuals
related to the Fancher family also contributed to Commissioner Donnelly’s campaign in
2016.
64. 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.”
65. The Code requires that a Commissioner, in his or her “sole discretion”,
recuse himself or herself from any quasi-judicial decision if he or she “believe[s] they
have a conflict of interest or for any other reason believes that they cannot make a fair
and impartial decision.” Code § 2-67(10). The Code also states that Commissioners must
avoid any conflict of interest and that all official actions “must represent unconflicted
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loyalty to the interest of the citizens of the entire county.” Code § 2-71.
66. Neither Commissioner Donnelly nor LRM disclosed the campaign
contributions while the application was pending before the Commissioners.
Commissioner Donnelly also failed to recuse himself from participating in a quasi-
judicial ruling on the Application despite receiving the campaign contributions from the
Fancher family during the most recent 2016 campaign.
67. The Board voted 2-1 to approve the Application. Commissioner Donnelly
cast the decisive vote on the Application.
FIRST CLAIM FOR RELIEF
(Request for Declaratory Relief)
68. The Plaintiffs incorporate all of the foregoing allegations as if set forth
herein.
69. A C.R.C.P. 106 claim for appellate relief may properly be accompanied by
a request for declaratory relief pursuant to C.R.C.P. 57 when a matter raises issues
regarding the constitutionality or legality of a statute and/or government action. See
Native Amer. Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 287 (Colo. App. 2004),
cert. denied (Colo. Aug. 16, 2004), cert denied (Colo. Aug. 16, 2004).
70. In setting forth the requirements that must be demonstrated to receive a
USR permit, the Code fails to define the critical phrases “harmony”, “substantial adverse
impact”, and “maintaining the integrity and character of the neighborhood.” The Code
includes a generic definition of “compatible” that fails to provide any guidance as to
whether and when uses may be found to be compatible with one another.
71. The Code does not provide for a predictable, repeatable, and objective
quasi-judicial test or framework by which the Board should determine whether a USR
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application should be approved or denied.
72. Consequently, the USR process under the Code is facially
unconstitutionally vague and provides the Board with unfettered discretion to approve or
deny a USR application.
73. The absence of well-defined and more particularized criteria permits the
Board to engage in unlawful spot zoning by changing the nature of an applicant’s
property to the sole economic benefit of the applicant and the obvious detriment of
surrounding land users.
74. The Code further fails to provide sufficient procedural safeguards to
ensure the fairness of quasi-judicial land use decisions. The Code requires that a
Commissioner, in his or her “sole discretion”, recuse himself or herself from any quasi-
judicial decision if he or she “believe[s] they have a conflict of interest or for any other
reason believes that they cannot make a fair and impartial decision.” Code § 2-67(10).
The Code also states that Commissioners must avoid any conflict of interest and that all
official actions “must represent unconflicted loyalty to the interest of the citizens of the
entire county.” Code § 2-71. These Code provisions make recusal entirely voluntary; do
nothing to ensure a fair and unbiased quasi-judicial process; and are inconsistent with
Article XXIX(1)(c) of the Colorado Constitution.
75. Plaintiffs also bring “as applied” constitutional challenges under C.R.C.P.
57 to the County’s application of these vague and unconstitutional Code provisions. The
County’s application of the conflict of interest, disclosure, and recusal Code provisions to
this Application violated Plaintiffs’ due process and constitutional rights by allowing
Commissioner Donnelly to pass quasi-judicial judgment on the Application after
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receiving significant campaign contributions from the Applicant, or those employed by or
related to the Applicant, without disclosing the conflict of interest and recusing himself
from the proceeding. The timing and amount of the campaign contributions from
Defendant LRM to Defendant Commissioner Donnelly created a “serious risk of actual
bias” where “a person with a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case by raising funds or directing
the judge’s election campaign when the case was pending or imminent.” Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 884 (2009). By not recusing Defendant
Commissioner Donnelly from the County’s consideration of Defendant LRM’s USR
Application, the County Defendants fell below the “constitutional floor” for guaranteeing
a fair process before a fair tribunal. City of Manassa v. Ruff, 235 P.3d 1051, 1057 (Colo.
2010).
76. The foregoing infirmities in the Code have impaired the Plaintiffs’ rights
to fundamental fairness and due process of law and should be declared facially unlawful
and constitutionally unlawful “as applied” pursuant to C.R.C.P. 57.
77. Plaintiffs’ C.R.C.P. Section 106(a)(4) does not provide adequate judicial
relief for these constitutional violations. A judgment or decree by the Court, if rendered
or entered on these Rule 57 issues, would require the reversal of the F&R and end the
uncertainty, insecurity, and controversy with respect to the rights, status, or other legal
relations between the parties.
SECOND CLAIM FOR RELIEF
(Review of the Larimer County Commissioners’ F&R approving of
LRM’s Use by Special Review Permit, 17-ZONE2113 pursuant to
C.R.C.P. 106(a)(4))
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78. The Plaintiffs incorporate all of the foregoing allegations as if set forth
herein.
79. The Board abused its discretion by approving the proposed gravel mine
and concrete batch plant despite the absence of competent evidence in the record that the
proposed use would be compatible with the existing surrounding uses, in harmony with
the surrounding neighborhood and that the proposed concrete batch plant would maintain
the integrity and character of the neighborhood. More specifically,
a. the undisputed evidence demonstrates that the industrial gravel mine and
concrete batch plant is objectively incompatible, out of harmony with, and would not
maintain the integrity and character of the existing residences and uses surrounding the
Proposed Site.
b. The Board further abused its discretion by basing its compatibility
determination on LRM’s claim that it would cease operation of, and remove, the concrete
batch plant upon cessation of gravel mining and would preserve the open nature of the
land after reclamation. As approved, the F&R does not include any enforceable
obligation for LRM to cease operation of, and remove, the concrete batch plant upon
cessation of gravel mining and/or to preserve the open nature of the land after
reclamation.
80. The Board’s findings of compatibility, harmony, integrity and
maintenance of character was arbitrary and capricious.
81. The Board further abused its discretion by approving the gravel mine and
concrete batch plant despite the absence of competent evidence within the record that the
proposed uses would not have a substantial adverse impact on property in the vicinity of
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the Proposed Site. The undisputed evidence in the administrative record confirms that the
proposed gravel mine and concrete batch plant will result in numerous adverse impacts,
including but not limited to diminishment of use and enjoyment of surrounding
properties, air pollution, water pollution, significant heavy truck traffic on rural roads,
dust, noise, blight on the existing viewshed, disruption of rural residential quality of life,
and risk of harm to buildings and properties from groundwater mounding.
82. The Board’s finding of no substantial adverse impact was arbitrary and
capricious.
83. The Board further abused its discretion by approving the gravel mine and
concrete batch plant despite the absence of competent evidence within the record that the
proposed mine and batch plant are consistent with the master plan elements adopted
pursuant to Section 34-1-304 C.R.S. regarding commercial mineral deposits.
84. The Board’s finding that the proposed mine and batch plant are consistent
with the master plan elements adopted pursuant to Section 34-1-304 C.R.S. was arbitrary
and capricious.
85. Issuing a Board decision in violation of the State law or the Larimer
County Code is a per se abuse of discretion. People v. Wadle, 97 P.3d 932, 936 (Colo.
2004).
86. In Board abused its discretion in approving the Application, issuing the
F&R, and/or granting the Special Review permit to LRM because:
a. The Code does not allow the proposed concrete batch plant as an
accessory use to gravel mining at the Proposed Site;
b. The Larimer County Noise Ordinance does not allow residential noise
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standards to be exceeded by activities unrelated “to the erection, demolition, assembling,
alteration, installation or equipping of buildings, structures, roads or appurtenances
thereof, including land clearing, grading, excavating, and filling”;
c. Larimer County failed to comply with State law in adopting a compliant
master plan for excavation of commercial mineral deposits prior to issuing the F&R.
87. A quasi-judicial administrative decision must be based upon findings of
fact within the administrative record and failure to make express findings of fact on a
core issue may be grounds for remand to the administrative body to make such findings.
Canyon Area Residents, 172 P.2d at 909-10.
88. The Board’s F&R fails to make express findings of fact on core issues
including:
a. whether the proposed concrete batch plant is an allowable accessory use
on the Proposed Site and why;
b. whether the Code allows processing of offsite unmined materials as an
accessory use at gravel mining sites, and why;
c. whether the concrete batch plant is located on the same lot as all gravel
mining operations, and why;
d. whether the concrete batch plant is secondary and incidental to the gravel
mining operation, and why;
e. whether the concrete batch plant is prohibited as a “general industrial use”
on lots zoned Open and only allowing “accessory rural occupation” uses, and why;
f. whether noise from overburden removal and stockpiling activities are
incidental to the construction of buildings and/or roads under the Noise Ordinance, and
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why;
g. whether Larimer County had a compliant master plan for excavation of
commercial mineral deposits at the time it approved the F&R, and why.
89. Pursuant to C.R.C.P. 106(a)(4), the Plaintiffs are entitled to a review of the
Board’s F&R; an order reversing and vacating the F&R; and/or an order remanding the
F&R for additional express findings and reconsideration.
90. The Plaintiffs have suffered and will continue to suffer harm as a result of
the actions of the Board.
91. The Plaintiffs have no other plain, speedy, or adequate remedy provided
by law.
WHEREFORE, the Plaintiffs respectfully request that this Court:
(a) Preliminarily enjoin the Defendants pursuant to C.R.C.P. 65(a) from undertaking
any land use upon the Proposed Site in furtherance of the F&R;
(b) Declare the Larimer County Land Use Code facially unlawful and unlawful “as
applied” under Rule 57 and reverse the F&R;
(c) Conduct judicial review of the Board’s approval of the F&R under C.R.C.P.
106(a)(4) and hold that the Board abused its discretion in adopting the F&R and reverse
the F&R, or alternatively remand the F&R for both reconsideration by the Board and to
make necessary and express findings of fact lacking in the F&R;
(d) Permanently enjoin the Defendants from undertaking any land use upon the
Proposed Site that is inconsistent with the underlying Code and zoning designation;
(e) Grant such other and further relief as the Court deems just and proper.
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Respectfully submitted this 27th day of March 2019.
/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
ATTORNEY FOR PLAINTIFFS
Plaintiffs Addresses:
No Laporte Gravel Corp
P.O. Box 59
LaPorte, CO 80535
Robert Havis
3217 West County Road 52 East
LaPorte, Colorado 80535
Peter Waack
3116 Gold Charm Drive
Fort Collins, CO 80524
CERTIFICATE OF DELIVERY
I hereby certify that on this 27th day of March 2019, a true and correct copy of the
foregoing Plaintiffs’ First Amended Complaint was sent via Colorado Courts E-filing
System and/or by email to the following:
FOR DEFENDANT BOARD OF COUNTY COMMISSIONERS OF LARIMER
COUNTY
Jeannine Haag @ jeanninehaag@larimer.org
William Ressue @ wressure@larimer.org
FOR DEFENDANT LOVELAND READY-MIX
Donald Ostrander @ mail@hrodlaw.com
Joel Spector @ pooljoel@hrodlaw.com
/s/ John M. Barth
John M. Barth