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HomeMy WebLinkAbout2016CV31096 - CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION; AND POUDRE FIRE AUTHORITY, A COLORADO PUBLIC ENTITY V. KEITH GILMARTIN - 002 - COMPLAINT1 2446345.5 DISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 La Porte Avenue Suite 100 Fort Collins, CO 80521 970-494-3500 ▲ COURT USE ONLY ▲ Plaintiff: POUDRE FIRE AUTHORITY, a Colorado public entity, v. Defendants: KEITH GILMARTIN, an individual. Attorney for Plaintiff: Kelley B. Duke, #35168 Benjamin J. Larson, #42540 IRELAND STAPLETON PRYOR & PASCOE, PC 717 17th St. Suite 2800 Denver, Colorado 80202 Telephone: (303) 623-2700 Fax No.: (303) 623-2062 E-mail: kduke@irelandstapleton.com blarson@irelandstapleton.com Case No.: Div.: Ctrm: COMPLAINT Plaintiff Poudre Fire Authority, a Colorado public entity (“Authority”), by and through its counsel, IRELAND STAPLETON PRYOR & PASCOE, PC, for its Complaint against Defendant Keith Gilmartin (“Defendant”) states as follows: PARTIES AND JURISDICTION 1. The Authority is a public entity formed in 1981 by an Intergovernmental Agreement between the City of Fort Collins (“City”) and the Poudre Valley Fire Protection District (collectively, “Contracting Agencies”) to provide fire and emergency services to the citizens and their property within the Contracting Agencies’ jurisdictional boundaries. The DATE FILED: November 28, 2016 2:54 PM FILING ID: 92BE1E59218EB CASE NUMBER: 2016CV31096 2 2446345.5 Intergovernmental Agreement was amended and restated on November 3, 1987, and again on July 15, 2014 (“2014 IGA”). A copy of the 2014 IGA is attached as Exhibit A and incorporated herein by reference. 2. Defendant Keith J. Gilmartin is an individual who resides at 3316 West Vine Drive, Fort Collins, Colorado 80521 (“Gilmartin Property”). 3. This Court has personal jurisdiction over all parties. 4. Venue is proper in this Court pursuant to C.R.C.P. 98(a). GENERAL ALLEGATIONS 5. The Authority incorporates paragraphs 1 through 4 as if set forth fully herein. 6. The Authority operates a Training Center located at 3400 West Vine Drive in Fort Collins, Colorado (“Training Center”). 7. On January 15, 1991, Hubert J. Gilmartin, Florence R. Gilmartin, and Defendant granted, sold, and conveyed to the City, its successors and assigns, a perpetual easement and right-of-way to install, operate, maintain, repair, reconstruct, replace, inspect, remove, at any time and from time to time public improvements (including without limitation, street, utilities, sidewalk and drainage), together with a right-of-way for access on, along, through and under the Gilmartin Property (“Easement”). The Deed of Easement is attached as Exhibit B and incorporated herein by this reference. 8. The property on which the Training Center is located is the property benefited by the Easement. Without the Easement, the Authority and it directors, officers, employees, volunteers, agents, guests and invitees cannot access the Training Center. An aerial photograph 3 2446345.5 depicting the Training Center, the Gilmartin Property, and an approximation of the Easement is attached as Exhibit C and incorporated herein by this reference. 9. Pursuant to the 2014 IGA and the Delegation of Duties entered into by and between the City and the Authority, which is attached to this Complaint as Exhibit D and incorporated herein by this reference, the Authority has the power, duty, and responsibility to maintain, operate, manage, control, and assert all rights under and pursuant to the Easement, including the right to initiate this Complaint. 10. From when the Easement was granted in 1991 through approximately 2010, the Authority enjoyed use of the Easement without interference by Defendant; however, beginning in approximately 2010, Defendant, who upon information and belief, currently resides on the Gilmartin Property, has substantially interfered with the Authority’s peaceful use and enjoyment of the Easement, including the following knowing and intentional wrongful conduct: a. On or about August 21, 2010, Defendant welded a chain around a gate located within the Easement, which prevented the Authority from using the Easement (“August 21st Incident”). When a Captain at the Training Center attempted to remove the chain, he burned his hand on the recently welded chain. Defendant told the Larimer County Sheriff’s Office (“LCSO”), which had been dispatched to the August 21st Incident, that Defendant had seen the Captain approach the gate shortly after Defendant welded the chain together but he did not believe it was his responsibility to warn the Captain that the chain would be hot from its recent welding. The LCSO had the chain removed. Documents relating to the August 21st Incident are attached as Exhibit E; 4 2446345.5 b. On or about September 28, 2011, Defendant acted in a hostile manner when he jumped out from the side of the road within the Easement, approached vehicles that were driving toward the Training Center, screamed at the drivers, and took pictures of the vehicles and their license plates (“September 28th Incident”). The individuals informed the Authority of Defendant’s behavior and the Authority contacted the LCSO. The LCSO responded and stated Defendant’s actions were dangerous and could have resulted in an automobile accident within the Easement. The LCSO told Defendant he needed to act in a safer manner and if he chose to take photographs in the future he should do so from his driveway. Documents relating to the September 28th Incident are attached as Exhibit F; c. On or about May 30, 2013, Defendant acted in a hostile manner when he verbally confronted landscapers hired by the Authority to maintain the grounds at the Training Center and within the Easement (“May 30th Incident”). Defendant physically blocked the landscapers from mowing the grass within the Easement by placing his bicycle and rocks in the way of the landscapers’ lawnmower. The LCSO was dispatched and prohibited Defendant from engaging in such actions. Documents relating to the May 30th Incident are attached as Exhibit G; d. On or about June 27, 2013, Defendant acted aggressively when he verbally confronted the mail carrier within the Easement; e. On or about July 5, 2013, Defendant attempted to reduce the width of the Easement by moving the fence posts delineating the Easement approximately 20 to 30 feet into the Easement. The Authority’s personnel were required to expend time moving the fence posts back to their correct location; 5 2446345.5 f. On or about September 27, 2013, Defendant stepped in front of, and physically blocked, a vehicle driving toward the Training Center within the Easement; g. On or about November 1, 2013, individuals reported to the Authority that Defendant inappropriately, and without permission, entered their personal vehicles that were parked within the Easement; h. On or about December 27, 2013, Defendant made threatening gestures to individuals driving their vehicles toward the Training Center within the Easement by using a shovel to mimic pointing and shooting a gun at the individuals, and drawing his hand across his throat to indicate that Defendant was going to cut the individuals’ throats; i. On or about September 30, 2014, Defendant drove his vehicle erratically within the Easement, engaging in rapid breaking and swerving, which nearly caused an automobile accident with a firefighter who was leaving a training class that he had attended at the Training Center (“September 30th Incident”). When the firefighter attempted to turn off of the Easement to avoid Defendant’s erratic driving, Defendant swerved his vehicle without warning in front of the firefighter, cutting him off. The Colorado State University Police Department was dispatched to the Training Center. Documents relating to the September 30th Incident are attached as Exhibit H; j. On or about May 2, 2015, Defendant acted in a hostile manner when he verbally confronted landscapers hired by the Authority to maintain the grounds at the Training Center and within the Easement (“May 2nd Incident”). Defendant yelled at the landscapers and physically blocked them from leaving by parking his vehicle in front of the landscapers’ vehicles for approximately 20 minutes. During the May 2nd Incident, the landscapers became concerned 6 2446345.5 that Defendant was going to harm them, so they entered their vehicles, locked the doors, and called the LCSO. The LCSO responded to the May 2nd Incident to investigate Defendant’s disorderly behavior. Documents relating to the May 2nd Incident are attached as Exhibit I; k. On or about May 31, 2015, Defendant acted in a hostile manner when he verbally confronted an Authority member who was driving his vehicle within the Easement; l. On or about June 4, 2015, Defendant once again verbally confronted a landscaper hired by the Authority to maintain the Easement; m. On or about July 1, 2015, Defendant physically blocked Authority trainees with his vehicle and a trailer, preventing the trainees from performing training maneuvers with their apparatus within the Easement (“July 1st Incident”). Defendant also yelled at the trainees, approached their vehicles while they were driving, and shined a bright light in their eyes while they were driving. Despite the Authority’s request, Defendant refused to move his vehicle and trailer out of the Easement. The Authority contacted a towing company to remove Defendant’s vehicle and trailer, at which time Defendant moved his vehicle and trailer. As a result of the July 1st Incident, Defendant was summonsed for harassment by the LCSO. Documents relating to the July 1st Incident are attached as Exhibit J; n. On or about May 13, 2016, Defendant installed tree stumps within the Easement in order to prevent the Authority from using the Easement for its intended purpose. The tree stumps created a physical barrier that prevented the Authority from using the full width of the Easement and from turning apparatus around within the Easement. The Authority was then forced to pay for removal of the tree stumps; and 7 2446345.5 o. On or about October 18, 2016, Defendant erected two adjoining metal signs on his property within or very near the entrance to the Easement (the “Signs”). A picture of the signs is attached as Exhibit K. The top sign, containing the official logo of the Authority, reads “PFA Personnel Only.” The bottom sign, containing a no U-turns symbol, reads “Private Drive.” The Authority has never given Defendant permission to use its official logo. By erecting the Signs, Defendant has unlawfully placed restrictions on the Easement that do not otherwise exist. Upon information and belief, Defendant’s actions are calculated to prevent the Authority and its authorized agents or invitees from using the Easement as permitted by the Deed of Easement. 11. In addition to Defendant’s actions memorialized in written documentation by the Authority and the LCSO, Defendant has on multiple additional occasions acted in a hostile and aggressive manner toward the Authority while the Authority used the Easement. These behaviors include, but are not limited to, standing within the Easement and timing individuals to calculate the speed at which they are driving; photographing individuals, their vehicles, and their license plates while they are driving through or parked within the Easement; and physically preventing the Authority from using the Easement to the full extent provided for under the Deed of Easement. 12. Notwithstanding Defendant’s ongoing actions that are intended to prevent or discourage the Authority from using the Easement, the Authority has taken measures to minimize the impact the Authority’s use of the Easement may have on Defendant’s use and enjoyment of the Gilmartin Property, including the following: 8 2446345.5 a. The Authority installed speed limit signs indicating that drivers should not exceed 25 miles per hour within the Easement; b. The Authority maintains the Easement by collecting trash and keeping the grassy area mowed; c. The Authority educates Authority employees, volunteers, and guests on appropriate use of the Easement, including where individuals may park their vehicles within the Easement and the maximum speed limit while driving within the Easement; d. The Authority has taken steps to reduce the number of vehicles parked within the Easement as a courtesy to Defendant; and, e. In an effort to ensure it is not entering the Gilmartin Property beyond the boundaries of the Easement, the Authority paid to have boundaries of the Easement surveyed and marked with survey stakes. FIRST CLAIM FOR RELIEF (Trespass) 13. The Authority incorporates paragraphs 1 through 12 as if set forth fully herein. 14. The Authority has a possessory interest into and to the entire area within the Easement by virtue of the Deed of Easement. 15. Since approximately 2010, Defendant has, without the Authority’s permission, knowingly and intentionally entered the Easement for the purpose of engaging in the misconduct specified in paragraphs 11 and 12 of this Complaint. 16. Defendant’s numerous, consistent efforts to interfere with the Authority’s peaceful and rightful use of the Easement since 2010, notwithstanding on-going efforts of the 9 2446345.5 Authority, the Colorado State University Police Department, and the LSCO to convince Defendant to stop his wrongful conduct, constitutes a continuing trespass. 17. Defendant’s trespass will continue indefinitely into the future unless this Court issues an order expressly prohibiting Defendant from entering the Easement without permission and engaging in actions that interfere with the Authority’s peaceful and lawful use of the Easement. SECOND CLAIM FOR RELIEF (Private Nuisance) 18. The Authority incorporates paragraphs 1 through 17 as if set forth fully herein. 19. As specified in paragraphs 11 and 12 of this Complaint, Defendant has intentionally and repeatedly engaged in conduct that has resulted in the unreasonable and substantial interference with the use and enjoyment of the Easement by the Authority and its employees, volunteers, agents, guests and invitees, and in some instances, has been unreasonably dangerous to them. 20. Defendant’s on-going wrongful conduct, as specified in paragraphs 11 and 12 of this Complaint, both while within the Easement and outside of the Easement, has been so significant that a normal person in the community would find it offensive, annoying, inconvenient and harassing. 21. Defendant’s offensive, annoying, inconvenient and harassing conduct will continue indefinitely into the future unless this Court issues an order expressly prohibiting Defendant from engaging in such actions. 10 2446345.5 REQUEST FOR RELIEF WHEREFORE, the Authority respectfully requests that judgment be entered as follows: 1. An order permanently enjoining Defendant and any other person acting on his behalf, from interfering with the Authority’s rights under the Deed of Easement, including but not limited to prohibiting Defendant from engaging in the following acts: a. At all times on all days, from entering the Easement for any purpose but to access the Training Center for a lawful purpose or to enter Defendant’s property by the gate on the easement; b. At all times on all days, from placing anything whatsoever within the Easement; c. At all times on all days, from placing any sign, barrier or other object outside of the Easement that interferes with the use and enjoyment of the Easement; d. At all times on all days, from engaging in threatening, intimidating or harassing behavior, such as shouting, cursing or making threatening gestures, within 500 feet of the Easement; and, e. At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein. 2. An order requiring Defendant to immediately remove the Signs posted at the entrance of the Easement; 3. An award of the costs, expenses, interest and reasonable attorneys’ fees the Authority has incurred in this action in accordance with applicable law; and, 4. Such other and further relief as this Court deems just and proper. 11 2446345.5 Respectfully submitted this 18th day of November, 2016. IRELAND STAPLETON PRYOR & PASCOE, PC Signed original on file at the office of Ireland Stapleton Pryor & Pascoe, PC /s/ Kelley B. Duke Kelley B. Duke, #35168 Benjamin J. Larson, #42540 Attorneys for Poudre Fire Authority Address of Plaintiff: 102 Remington Street Ft. Collins, CO 80524-2834