HomeMy WebLinkAbout2016CV31096 - CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION; AND POUDRE FIRE AUTHORITY, A COLORADO PUBLIC ENTITY V. KEITH GILMARTIN - 025 - AMENDED COMPLAINT1
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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:
CITY OF FORT COLLINS, a Colorado municipal
corporation; and POUDRE FIRE AUTHORITY, a Colorado
public entity,
v.
Defendant:
KEITH GILMARTIN, an individual.
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
SPECIAL COUNSEL FOR THE CITY OF FORT
COLLINS; ATTORNEYS FOR POUDRE FIRE
AUTHORITY
Case No.: 16CV31096
Div.: Ctrm: 3C
AMENDED COMPLAINT
Plaintiffs the City of Fort Collins, a Colorado municipal corporation (the "City"), and the
Poudre Fire Authority, a Colorado public entity (the "Authority", collectively, "Plaintiffs") by
and through their undersigned counsel, IRELAND STAPLETON PRYOR & PASCOE, PC, for their
Amended Complaint against Defendant Keith Gilmartin ("Defendant") state as follows:
DATE FILED: March 27, 2017 1:16 PM
FILING ID: FBFED010EA744
CASE NUMBER: 2016CV31096
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PARTIES AND JURISDICTION
1. The City is a municipal corporation organized under the laws of the State of
Colorado.
2. The Authority is a public entity formed in 1981 by an Intergovernmental
Agreement between the 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 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.
3. Defendant Keith J. Gilmartin is an individual who resides at 3316 West Vine
Drive, Fort Collins, Colorado 80521 ("Gilmartin Property").
4. This Court has personal jurisdiction over all parties.
5. Venue is proper in this Court pursuant to C.R.C.P. 98(a).
GENERAL ALLEGATIONS
6. Plaintiffs incorporate the preceding paragraphs of the Amended Complaint as if
set forth fully herein.
7. The Authority operates a Training Center located at 3400 West Vine Drive in Fort
Collins, Colorado ("Training Center").
8. On January 15, 1991, Hubert J. Gilmartin, Florence R. Gilmartin, and Defendant,
in exchange for the sum of $4,669.00, granted, sold, and conveyed to the City, its successors, and
assigns a public easement described as follows:
a perpetual easement and right-of-way to install, operate, maintain, repair,
reconstruct, replace, inspect and remove, at any time and from time to
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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].
(The "Easement"). The Deed of Easement is attached as Exhibit B and incorporated
herein by this reference.
9. The property on which the Training Center is located is the property benefited by
the Easement. Without the Easement, the Authority and its directors, officers, employees,
volunteers, agents, guests and invitees cannot access the Training Center. An aerial photograph
depicting the Training Center, the Gilmartin Property, and an approximation of the Easement is
attached as Exhibit C and incorporated herein by this reference.
10. Pursuant to the 2014 IGA and the Delegation of Duties entered into by and
between the City and the Authority, which is attached 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.
11. From when the Easement was granted in 1991 through approximately 2010,
Plaintiffs 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 Plaintiffs' 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
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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;
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;
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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;
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
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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
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
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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
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.
12. 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
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preventing the Authority from using the Easement to the full extent provided for under the Deed
of Easement.
13. 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:
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)
14. Plaintiffs incorporate the preceding paragraphs of the Complaint as if set forth
fully herein.
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15. The City, through the Deed of Easement, and the Authority, through the 2014
IGA and the Delegation of Duties, have a possessory interest into and to the entire area within
the Easement.
16. Since approximately 2010, Defendant has, without the Plaintiffs' permission,
knowingly and intentionally entered the Easement for the purpose of engaging in the misconduct
specified in paragraphs 11 and 12 of this Complaint.
17. Defendant's numerous, consistent efforts to interfere with the Plaintiffs' peaceful
and rightful use of the Easement since 2010, notwithstanding on-going efforts of the Authority,
the Colorado State University Police Department, and the LSCO to convince Defendant to stop
his wrongful conduct, constitutes a continuing trespass.
18. Defendant's trespass will continue indefinitely into the future unless this Court
issues an order expressly prohibiting Defendant from engaging in actions that interfere with the
Plaintiffs' peaceful and lawful use of the Easement.
SECOND CLAIM FOR RELIEF
(Private Nuisance)
19. Plaintiffs incorporate the preceding paragraphs of the Amended Complaint as if
set forth fully herein.
20. As specified in paragraphs __ and __ of this Amended 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 Plaintiffs and their
respective employees, volunteers, agents, guests and invitees, and in some instances, has been
unreasonably dangerous to them and the general public.
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21. Defendant's on-going wrongful conduct, as specified in paragraphs __ and __ of
this Amended 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.
22. 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.
THIRD CLAIM FOR RELIED
(Declaratory Judgment)
23. Plaintiffs incorporate the preceding paragraphs of the Amended Complaint as if
set forth fully herein.
24. There is an actual claim or controversy between Plaintiffs and Defendant
concerning the scope and construction of the Deed of Easement.
25. Pursuant to C.R.S. § 13-51-106 and C.R.C.P. 57(b), Plaintiffs, as parties whose
rights are affected thereby, have standing to ask this Court to construe the Deed of Easement and
obtain a declaration of their rights under that agreement.
26. All necessary parties under C.R.S. § 13-51-115 and C.R.C.P. 57(j) are before the
Court.
27. Pursuant to C.R.S. § 13-51-101 et seq. and C.R.C.P. 57, Plaintiffs therefore seek a
declaration that (a) the Easement is a public easement for use by the public as authorized by the
City; (b) that Plaintiffs and their respective directors, officers, employees, volunteers, agents,
guests, and invitees may use the Easement free from interference from Defendant for all
purposes set forth in the Deed of Easement, including but not limited to, ingress to and egress
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from the Training Center, parking vehicles, and for the exercise of all powers afforded to the
Authority under the Special District Act and applicable Colorado law, and (c) any further
interference by Defendant with Plaintiffs' rights under the Deed of Easement will constitute
trespass and private nuisance.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that judgment be entered as follows:
1. An order permanently enjoining Defendant and any other person acting on his
behalf, from interfering with Plaintiffs' 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 placing anything whatsoever within the
Easement;
b. 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;
c. 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,
d. 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 order declaring that (a) the Easement is a public easement for use by the
public as authorized by the City; (b) that Plaintiffs and their respective directors, officers,
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employees, volunteers, agents, guests, and invitees may use the Easement free from interference
from Defendant for all purposes set forth in the Deed of Easement, including but not limited to,
ingress to and egress from the Training Center, parking vehicles, and for the exercise of all
powers afforded to the Authority under the Special District Act and applicable Colorado law, and
(c) any further interference by Defendant with Plaintiffs' rights under the Deed of Easement will
constitute trespass and private nuisance.
4. An award of the costs, expenses, interest and reasonable attorneys' fees Plaintiffs
have incurred in this action in accordance with applicable law; and
5. Such other and further relief as this Court deems just and proper.
Respectfully submitted this 27th day of March, 2017.
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
Special Counsel for the City of Fort Collins
Attorneys for Poudre Fire Authority
Address of Plaintiffs:
City of Fort Collins
300 LaPorte Ave.
Fort Collins, CO 80521
Poudre Fire Authority
102 Remington Street
Fort Collins, CO 80524-2834
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CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of March, 2017, a true and correct copy of the
foregoing AMENDED COMPLAINT was served via U.S. Postal Service, first class mail,
postage prepaid and addressed as follows:
Keith Gilmartin
3316 W. Vine Drive
Fort Collins, CO 80521
And served via email to:
keithgil2@gmail.com
SIGNED ORIGINAL ON FILE AT THE OFFICE OF
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Barbara Biondolillo
Barbara Biondolillo