HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 021D - Exhibit D - Havis Answer Case No. 2019Cv301231
Larimer County District Court
Larimer County, Colorado
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
(970) 494-3500
Court Use Only
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.
Jeannine S. Haag, Reg. No. 11995
William G. Ressue, Reg. No. 34110
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone: (970) 498-7450
Fax: (970) 498-7430
jeanninehaag@larimer.org
wressue@larimer.org
Case No. 19 CV 30123
Courtroom 3B
ANSWER OF BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY
Defendant 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)
answer Plaintiffs’ First Amended Complaint as follows:
1.Paragraph 1.Admit.
2.Paragraph 2.Deny.
3.Paragraph 3.Deny.
4.Paragraph 4.Admit the Proposed Site is located along County Road 54G in
unincorporated Larimer County. Deny the characterization that the Site is in
the heart of Laporte.
DATE FILED: July 1, 2019 3:42 PM
FILING ID: F397191964F8E
CASE NUMBER: 2019CV30123
EXHIBIT D
DATE FILED: October 23, 2020 12:08 PM
FILING ID: 577B70D840207
CASE NUMBER: 2020CV30580
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5. Paragraph 5. Admit.
6. Paragraph 6. Admit.
7. Paragraph 7. Admit.
8. Paragraph 8. Deny
9. Paragraph 9. Admit venue is proper in this Court but deny this is an action affecting real
property under Colo. R. Civ. P. Rule 98(a).
10. Paragraph 10. Admit the individually named Plaintiffs gave oral testimony during the Board
of County Commissioner hearing. Deny the remainder of the allegations.
11. Paragraph 11. Deny.
12. Paragraph 12. Admit the first sentence. The second sentence is a legal conclusion to which
no response is required. Deny the remainder of the allegations.
13. Paragraph 13. Admit.
14. Paragraph 14. Without knowledge and therefore deny.
15. Paragraph 15. Without knowledge and therefore deny.
16. Paragraph 16. Without knowledge as Plaintiffs’ corporate status and purpose and location of
Plaintiffs’ members properties. Deny the remainder of the allegations.
17. Paragraph 17. Without knowledge and therefore deny.
18. Paragraph 18. Without knowledge and therefore deny.
19. Paragraph 19. Admit Larimer County has adopted the Larimer County Land Use Code.
Deny that this Code is the sole law applicable to unincorporated Larimer
County.
20. Paragraph 20. Deny. Section 4.1.5 lists as “[p]rincipal uses” inter alia Agricultural,
Residential, and Industrial, including mining.
21. Paragraph 21. Admit the Larimer County Land Use Code lists mining listed as one of the
industrial uses allowed in the O-Open by special review. Deny the remainder
of the allegations.
22. Paragraph 22. Admit.
23. Paragraph 23. Admit.
24. Paragraph 24. Admit.
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25. Paragraph 25. Admit.
26. Paragraph 26. Admit.
27. Paragraph 27. Admit.
28. Paragraph 28. Admit. Deny characterization of campaign donations as substantial.
29. Paragraph 29. Admit quasi-judicial actions are reviewed under Rule 106(a)(4) for an abuse of
discretion. Deny the remainder of the allegations as improper legal argument,
not factual allegations.
30. Paragraph 30. Deny.
31. Paragraph 31. Deny as improper legal argument, not factual allegations.
32. Paragraph 32. Deny as improper legal argument, not factual allegations.
33. Paragraph 33. Admit that LRM has applied for approval to conduct gravel mining on the
subject property and the zoning of O-Open. Deny the characterization of the
subject property being in downtown LaPorte.
34. Paragraph 34. Deny.
35. Paragraph 35. Admit the Proposed Site has been used for grazing and hay production.
Without knowledge as to the remainder of the allegations and therefore deny.
36. Paragraph 36. Admit.
37. Paragraph 37. Admit.
38. Paragraph 38. Admit.
39. Paragraph 39. Admit.
40. Paragraph 40. Admit.
41. Paragraph 41. The LRM mining application speaks for itself. Deny any allegations
inconsistent with the application. Without sufficient knowledge as to the
remainder of the allegations and therefore deny same.
42. Paragraph 42. Admit.
43. Paragraph 43. Admit.
44. Paragraph 44. Admit.
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45. Paragraph 45. The Second Submittal speaks for itself. Deny any allegations inconsistent
with the Second Submittal. Deny the remainder of the allegations.
46. Paragraph 46. Admit.
47. Paragraph 47. Admit.
48. Paragraph 48. Without sufficient knowledge of the allegation and therefore deny same.
49. Paragraph 49. Deny.
50. Paragraph 50. Admit.
51. Paragraph 51. Deny.
52. Paragraph 52. Deny.
53. Paragraph 53. Admit.
54. Paragraph 54. Admit.
55. Paragraph 55. Admit.
56. Paragraph 56. Admit.
57. Paragraph 57. Admit.
58. Paragraph 58. Deny.
59. Paragraph 59. Admit.
60. Paragraph 60. Admit.
61. Paragraph 61. Deny.
62. Paragraph 62. Admit the third sentence of this allegation. Without knowledge as to the
other allegations and therefore deny same.
63. Paragraph 63. Admit Commissioner Donnelly was elected in 2016 and received campaign
contributions in the amounts listed. Deny characterization of contributions
as significant. Without knowledge as to contributions of other employees
and/or individuals and therefore deny same.
64. Paragraph 64. Admit.
65. Paragraph 65. Admit.
66. Paragraph 66. Admit that Commissioner Donnelly participated in the Special Review
Hearing. Deny the remainder of the allegations.
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67. Paragraph 67. Admit two Commissioners voted to approve the Application and one
Commissioner voted to deny the Application. Deny Commissioner Donnelly
cast the decisive vote.
68. Paragraph 68. This Paragraph does not require an answer.
69. Paragraph 69. Deny this allegation as improper legal argument.
70. Paragraph 70. Deny.
71. Paragraph 71. Deny.
72. Paragraph 72. Deny.
73. Paragraph 73. Deny.
74. Paragraph 74. Deny.
75. Paragraph 75. Deny.
76. Paragraph 76. Deny.
77. Paragraph 77. Deny.
78. Paragraph 78. Paragraph 78 does not require an answer.
79. Paragraph 79. Deny.
80. Paragraph 80. Deny.
81. Paragraph 81. Deny.
82. Paragraph 82. Deny.
83. Paragraph 83. Deny.
84. Paragraph 84. Deny.
85. Paragraph 85. Deny.
86. Paragraph 86. Deny.
87. Paragraph 87. Deny as improper legal argument and not factual allegations.
88. Paragraph 88. Deny.
89. Paragraph 89. Deny.
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90. Paragraph 90. Deny.
AFFIRMATIVE DEFENSES
A. Plaintiffs have failed to state a claim on which relief may be granted.
B. Plaintiffs’ claim that the County Code §§2-67(10) and 2-71 are facially unconstitutional
is baseless.
C. Plaintiffs’ claim that County Code §§2-67(10) and 2-71 are unconstitutional as applied is
only properly brought under C.R.C.P. 106(a)(4) and not under C.R.C.P. 57.
D. Campaign contributions are not a conflict of interest requiring recusal as a matter of
law.
E. The Board of County Commissioners decision was supported by competent evidence
and was not arbitrary or capricious or an abuse of discretion.
F. Plaintiffs’ claims for abuse of discretion based on Commissioner Donnelly’s
participation in the Special Review hearing were waived by their failure to request recusal at the outset
of the hearing.
Respectfully Submitted this 1st day of July , 2019.
LARIMER COUNTY ATTORNEY’S OFFICE
By: s/Jeannine S. Haag
Jeannine S. Haag, Reg. No. 11995
William Ressue, Reg. No. 34110
Attorneys for Defendant Board of County
Commissioners of Larimer County
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CERTIFICATE OF SERVICE
The undersigned certifies that true and correct copies of the foregoing Answer was served using
the Colorado Courts E-Filing system this 1st day of July , 2019, which will send notification to
the following:
John M. Barth
Attorney at Law
P.O. Box 409
Hygiene, CO 80533
barthlawoffice@gmail.com
Counsel for Plaintiffs
Donald M. Ostrander
Joel M. Spector
Hamre, Rodriguez, Ostrander & Dingess, P.C.
3600 S. Yosemite Street, Suite 500
Denver, CO 80237
mail@hrodlaw.com
Attorneys for Defendant Loveland Ready-Mix Concrete, Inc.
s/Jennifer D. Infeld