DISTRICT COURT, BOULDER COUNTY, COLORADO 1777 6 St., Boulder, CO 80302 DATE FILED: November 22, 2016 11 Plaintiff, v. CITY OF LONGMONT and LONGMONT CITY COUNCIL, Defendants. COURT USE ONLY ‘Attorney for Plaintiff Robert Gourley: Case Number: ‘Trevor H. McGarvey, Atty. Reg, #f 48363 P.O. Box 1486 Golden, CO 80402 Phone: (720) 343-9896 Fax: (720) 554 - 7844 Email: thmegarvey@verizon.net COMPLAINT Plaintiff Robert Gourley hereby files his Complaint against Defendants City of Longmont and the Longmont City Council seeking C.R.C.P. 106(a)(2) mandamus relief as well as declaratory relief under C.R.C.P. Rule 57, overtuming the City Council’s denial of Gourley’s Outside Water Tap OWT") application submitted tothe City. In support of his Complaint, Plaintiff'states as follows: BACKGROUND 1. Plaintiff Robert Gourley is the owner of 7593 Hygiene Rd, Longmont, CO 80503 (the Property”). The Property is located in unincorporated Boulder County, however water service to the Property historically has been provided by the City of Longmont. 2. Defendant City of Longmont (hereinafter “City”) is a home rule city whose municipal boundaries include parts of Boulder and Weld Counties. Defendant Longmont City Council is the governing body of the City. 3, Boulder County classifies 7593 Hygiene Rd as being in a commercial zoning district that allows mixed use, meaning both residential and commercial uses are allowed on the Property. 4, Water service to the Property is provided through a 5/8” x 3/4" water tap running from the City’s water infrastructure, Despite the commercial use of the Property, Longmont classifies the water tap as residential rather than commercial. p.1— Gourley v. City of Longmont Complaint5. Since buying the Property in 2005, Gourley has used it for both residential and commercial purposes. Specifically, he has rented structures on the Property as a residence while using other structures on the Property as a workshop for his construction and stone fabrication business. 6. This classification dates back to the original grant of extra-territorial water service to the Hygiene area. No documents detailing the original grant of water to the Property could be located and according to the City, “at some point in the past Boulder County changed the zoning to allow commercial use.” However, because the original OWT agreement for the Property can't be located, restrictions on use can’t be identified with spec 7. ‘The immediate neighbors to the left (7579 Hygiene Ra.) and right (76067 Hygiene Rd.) have been using the City’s water commercially for decades. These properties must be serviced by City water as there are no other viable water sources in the area. Commercial use of these properties (and the corresponding commercial use of the water provided by Longmont) dates back decades, respectively: ‘a, Boulder County property records show that 7597 Hygiene Rd. has been used as a commercial storage center dating back to at least 1983, when building permits were secured to divide the property into individual storage units. (Boulder County permit records are included as Exhibit A). b. Boulder County property records show that 7607 Hygiene Rd. has been allowed commercial use of the property dating back to 1955, when a garage/auto repair addition was permitted by the County along with the building of the residential structure. (The Boulder County Assessment report is included as Exhibit B). The property is currently used to sell commercial farm equipment. Gourley’s Outside Water Tap Application to Longmont 8. Gourley was not aware of the residential classification of his water until early 2015. Once he discovered the mistake in classification, Gourley submitted an Outside Water Tap *OWT”) application to the City requesting that they reclassify the existing tap on his property from residential to commercial to reflect the mixed use of the property allowed by Boulder County. ‘The OWT application did not seek any additional water to be provided by the City and did not include any changes to the infrastructure or pipes. 9, Section 14,09 of the Longmont Municipal Code, included as Exhibit C, provides the process for OWT applications to the City of Longmont. Section 14,09.020 specifically sets out the policy for consideration and approval of OWT applications: ‘a. 14.09.020(A) provides that “City staff may consider and process applications for OWTs “upon an initial determination by staff that the agreement or contract arising from granting such service will protect the health, safety, and welfare and thus clearly benefit the inhabitants of the city.” (Section 14.09.020(A), Longmont Municipal Code). p.2- Gourley v. City of Longmont Complaintb. If staff determines that the OWT application will not benefit the inhabitants of the City, they are to reject the application and not process it further. (Section 14,09.020(B), Longmont ‘Municipal Code), ‘All applications processed by staff for water service shall be forwarded to the city ‘water board for a recommendation. The board shall recommend approval if it determines that the application will clearly benefit the inhabitants of the city. The application will then be forwarded to city council for review and decision. (Section 14.09.020(C), Longmont Municipal Code). 10. At the July 21, 2015 City Council meeting, the Council approved “A Motion Finding that the Outside Water Tap Service Agreement for the Gourley Property Will Benefit the City and Direct Staff to Process the Application Request.” (Minutes from the Council meeting are attached as Exhibit D.) 11. As Gourley’s application slowly made its way through the City’s OWT approval process, two events occurred that would change the outcome: Mr. Gourley applied to Boulder County Land Use to use the Property as @ marijuana cultivation and products manufacturing center. After a public hearing at which many residents of Hygiene were allowed to testify and voice their opposition, Boulder County approved the change in use subject to two conditions: i, An Outside Water Tap Agreement must be executed with the Longmont designating the tap “commercial” and ii, At the request of the Hygiene Fire Department, a fire hydrant must be installed on the property. Section 14.09 of the city charter regarding OWT applications was amended. Of note, a provision stating OWT decisions were “legislative” and purely “discretionary” was added. The City Council Communication from the Water Board and the Proposed changes to Section 14.09, adopted June 14, 2016, are included as Exhibit E. ty of 12, On July 11,2016, The Longmont Water Board reviewed the OWT application at its regular meeting and voted 5-0 to recommend that the City Council approve the application subject to the two conditions required by Boulder County. In recommending approval, the Water Board determined that the OWT agreement would clearly benefit the inhabitants of the city. 13. A packet was prepared by the Water Board for City Council’s review at the October 11, 2016 City Council meeting. That packet is included in its entirety as Exhibit F and includes the following: Resolution R-2016-101 approving the OWT application; Gourley’s OWT application/Agreement; hydrant request from Hygiene Fire Department; Longmont Municipal Code Section 14.090.020; Longmont Municipal Code Section 14.05.10; Minutes of Public Meeting at Boulder County Commissioners; Vicinity Map. p.3~ Gourley v. City of Longmont Complaint14, City Council considered Gourley’s application at the October 11, 2016 regular meeting. The Council ultimately voted to deny the resolution and Gourley’s OWT application. ‘The denial came after public comment was heard from Hygiene residents in opposition to the OWT application, a presentation on the benefits was given by Water Board representative Ken Huson, and the Council engaged in discussion on the potential detriment to those citizens of Hygiene. The minutes from the October 11, 2016 City Council Meeting are included in their entirety as Exhibit G. 15. In the process, the City Council erred in its interpretation of their municipal charter, which required they find a clear benefit to inhabitants of their city, not a detriment to citizens of unincorporated Boulder County. City Council Denial All applications processed by staff for water service shall be forwarded to the city water board for a recommendation. The board shall recommend approval if it determines that the application will clearly benefit the inhabitants of the city. The application will then be forwarded to city council for review and determination. ‘ongmont Municipal Charter, Section 14.09.020(C)(2)a) 16. The language provides that the water board shall recommend approval if they find a clear benefit is conferred upon the inhabitants of the city, but does not identify the extent of the benefit. 17. The water board voted unanimously to approve the application. In their communication to City Couneil, the water board instructs the City Council to review the application and base their decision on the same standard. 18, According to the instructions from the Water Board, the Couneil should have authorized the resolution if the agrecment “clearly benefited the inhabitants of the city.” This language requires that a clear benefit be conferred upon the inhabitants. It does not identify a threshold extent of the benefit other than clearly. It does not provide for an inquiry or balancing test regarding the sufficiency of the benefit versus any potential detriments and it does not provide for an analysis of the potential detriment to non-inhabitants. 19. In his application, Gourley stated that he does most of his work in the Longmont area and hires citizens of the Longmont area (approximately 8-10), citing this as a benefit to the inhabitants (specifically those inhabitants who work for him or hire his services). 20, Longmont’s Water Board also pointed out a clear benefit to the City in the additional hydrant to be installed on the premises, finding that it would benefit the overall infrastructure of the City’s water supply by providing an additional release point for pressure on the system. In its communication to the City Council, the Longmont Water Board stated “The City has installed several fire hydrants outside of the City limits in cases where the fire hydrant is also useful to the ongoing operation of the water utility by providing locations to drain the water transmission lines during times of needed p.4~Gourley v. City of Longmont Complaint21 22, 23. maintenance.” Executive Summary, City Council Communication for October 11, 2016 City Council Meeting, Item Number .8. D. (R-2016-101). In the Water Board’s background and issue analysis, they go on to state: “While installation of fire hydrants are normally rare on transmission lines, they are installed on these lines as water system needs dictate. Normally, they are installed where draining or flushing a line is needed. In the case of this installation, staff believes a fire hydrant install ‘The Water Board applied the plain meaning of Section 14.09.020 of the Charter aclear benefit. City Council usually defers to the Water Board’s recommendation in evaluating OWT applications, which necessarily includes adopting the Water Board’s interpretation of controlling Charter provisions and the identification of a “clear benefit.” However, in this case Council deviated from standard practice. In reaching their decision, Members of the City Council acknowledged a benefit would be conferred on the City through the installation of a fire hydrant on the property. However, they justified their denial by reasoning that this benefit was not “sufficient” to approve the OWT application, ‘The Council members’ interpretation of Section 14.09 of their municipal code, which allowed for an inquiry into the sufficiency of the benefits versus the detriments of a proposed use on land governed by another body, is an attempt to exercise authority beyond their jurisdiction and contradicts the plain meaning of the Charter. In Cook v. City and County of Denver, 68 P. 3d 586 (Colo. App. 2003), the Court of Appeals summarized the rules of municipal charter interpretation: ‘The general rules of statutory construction apply to municipal charters. Smith v. City & County of Denver, 789 P-2d 442 (Colo.App.1989). However, we must strictly construe charters, ‘which confer only the powers expressed or necessarily implied. City of Englewood v. Englewood Career Serv. Bd, 798 P.24 585 (Colo.App.1989).. ‘Thus, we construe a charter according to its plain meaning. Glemvood Post»: City of Glemvood Springs, 731 P-24 761 (Colo.App.1986). When a charter is unambiguous, we will not alter the plain meaning. Sinith v. City & County of Denver, supra. Conversely, if the language does not clearly establish the meaning, ori the language is unclear because provisions are in conflict, then we must ascertain its meaning, and we may do so from extrinsic sources. See Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo, 1991); of People v. Cooper, 27 P.3d 348 (Colo.2001). “We construe charter provisions on the same subject matter together, whieh allows us to ascertain intent and avoid inconsistency. Smith v. City County of Denver, supra. If language can be reconciled using one interpretation, but would conflict under another interpretation, we favor the interpretation allowing for consistency. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We avoid an interpretation that leads to an absurd or unreasonable result, AviComm, Inc. v Coto. Pub, Utils ‘Comm'n, 955 P.2d 1023 (Colo.1998).” p.5~Gourley v. City of Longmont Complaint24. 25. 26. 21. 28. 29, 30. 3 ‘The Council's interpretation is not supported by the interpretation of the Water Board under the same language, by custom, or by the decision making process used in any prior OWT decisions available for Plaintif?’s revi ‘Afier denying the OWT application, Water Board representative Ken Huson sought clarification on the use now allowed on the property. Several members of the Couneil stated they had no objection to Mr. Gourley continuing the present use of the water tap on the property. Ironically, Gourley’s present use of the property was both commercial (workshop for construction/stone countertop business) as well as residential (renting out structures to residential tenants on the property) and had been since he purchased the property. The Council contradict itself in this instance, on the one hand denying the commercial classification of Gourley’s water tap while on the other hand seeming to encourage Mr. Gourley to violate the use provisions of his “residential” water tap by continuing his commercial use. They do not give sufficient clarity regarding what use is now allowed by Mr. Gourley on his property. The Council’s decision to deny Gourley’s OWT tap effectively prevents Mr. Gourley from making commercial use of the Property despite the zoning allowing such use. This injures Gourley’s rights as a property owner especially considering he has used the Property, and the ‘water, for commercial purposes since purchasing it in 2005. RST CLAIM FOR RELIEF — REVIEW UNDER C. 106(a)(2) Plaintiff Robert Gourley incorporates each allegation of the preceding paragraphs as through fully set forth herein, Rule 106(a) provides that “[iJn the following cases relief may be obtained in the district court”: (2) Where the relief sought is to compel a lower judicial body, governmental body, corporation, board, officer or person to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such lower judicial body, governmental body, corporation, board, officer, or person. The judgment shall include any damages sustained; ‘As owner, Gourley has a right to the use of the Property for commercial purposes under the Boulder County Zoning Code, which was the main reason he purchased the Property. He also hhas.a right to the use of his water tap for commercial purposes duc to his continued, interrupted use of the water commercially with objection or interference from the _ Both of Gourley’s immediate neighbors use their properties commercially and must use water provided by Longmont commercially as there are no other viable water sources in the area, p. 6 — Gourley v. City of Longmont Complaint32. 34. 39. 36. 31. 38. 39, Colorado Courts “permit mandamus when action has been taken arbitrarily or itreflects a gross abuse of discretion.” City Council of City and County of Denver v. United Negroes Protective Association, 76 Colo. 86 (1924). A court will grant relief when an agency's discretion is limited and the agency acts beyond those limits. “Mandamus is an appropriate remedy when an agency ignores or violates statutory restrictions on its authority." Marguez-Ramos v. Reno, 69 F.3d 477 (10 Cire. 1995). . City Couneil’s denial can only be explained in light of the fact that Boulder County required an OWT agreement with the City in order to secure final land use approval as a marijuana cultivation facility. The Council did not reach their decision, as instructed by the municipal Charter, on whether reclassifying the tap and installing a hydrant would create a benefit to the inhabitants of the City of Longmont. ‘Swayed by the testimony of individuals who do not live within their city, the Council grossly abused their discretion by usurping the authority of Boulder County to effectively ban all commercial use on the Property in order to prohibit one specific use, Further, they exceeded their statutory powers and those set forth in their municipal charter by making a decision for an area beyond their zoning authority. The decision on the use of the property as a marijuana establishment was Boulder County’s to make, which the County did after hearing that same testimony from those opposed within Hygiene. Gourley now seeks mandamus relief overturning the City Council’s decision to deny his OWT application and granting him the right to use his tap for commercial purposes on the grounds that the City acted beyond their statutory limits and grossly abused their discretion in denying the application after Gourley demonstrated a clear benefit to the inhabitants of the City SECOND CLAIM FOR RELIEF ~ DECLARATORY RELIEF UNDER CR.GP. RULE 57 Plaintiff Robert Gourley incorporates each allegation of the preceding paragraphs as through fully set forth herein. The Colorado Uniform Declaratory Judgments Law provides, in pertinent part, that “Any person...whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the...statute, ordinance, contract, or franchise and obtain a declaratory judgment of rights, status, or other legal relations thereunder.” C.R.S. 13-51-106, The first inquiry posed by a declaratory judgment claim is whether the party seeking relief has standing. A plaintiff has standing ithe or she has an "injury in fact" and the injury is to a "legally protected interest." Wimberly v. Ettenberg, 194 Colo, 163, 168, 570 P.2d $35, 539 «as77). p. 7 Gourley v. City of Longmont Complaint40. To be a "legally protected interest" for purposes of standing, the interest must be arguably within the zone of interests to be protected, As owner of the property, Mr. Gourley’s use and enjoyment, as well as the monetary value, of the Property have been injured due to the deni of his OWT application which effectively bars his commercial use of the Property 41. The original water grant cannot be located and as a result the restrictions within that document cannot be identified with any reliability. The two immediate neighbors have used their properties commercially dating back decades, which means the water provided to them by the City was also used commercially. Gourley has used the property, and the water, commercially since 2005 with no objection or interruption by the City. 42, Upon learning of the residential classification, Gourley then applied for the OWT. According to the municipal charter, when city staff forwarded to the application to the Water Board, they had made an initial determination that “granting such service will protect the health, safety, and welfare and thus clearly benefit the inhabitants of the city.” 43. The OWT application took almost a year to be heard by the Longmont Water Board. The Water Board approved the application 5-0, specifically finding a benefit to the inhabitants of the City in the required fire hydrant to be installed. The council then denied the application despite the fact that the council rarely, if ever, has departed from the Board’s recommendation, 44, The Council decided they were going to deny Gourley’s OWT application well before they took the issue up for formal consideration at the October 1, 2016 meeting. The change to the city charter months before, the Council’s departure from taking the recommendation of the Water Board, and the Council’s use of a different interpretation of the OWT review criteria is evidence of this. 45. After denying the OWT application, council was ambiguous as to what use was now allowed on the Property. Several members stated they were fine with the existing use. However, such use is (partly) commercial and has been since at least 2005. The Council’s guidance here leaves Gourley in Limbo as to his rights as a property owner and injures his use of the Property and the value of the Property itself. 46. Gourley now seeks declaratory relief, pursuant to the Colorado Declaratory Judgments Law, Sections 13-51-101, et seq., C.R.S and Rule 57, C.R.C-P., finding that Plaintiffs were denied due process of law secured by Section 25 of Article II of the Colorado Constitution and the 5" and 14" amendments to the U.S. Constitution when Defendants City of Longmont, acting through the Longmont City Council, abused its discretion, acted in an arbitrary and capricious manner, and exceeded its jurisdiction in denying Plaintif?'s OWT application as described above. Plaintiff requests declaratory judgment overturning the City Council’s denial of R- 2015, granting approval of Plaintiffs OWT application, awarding Plaintiff damages, and for such other relief as the Court finds just under the circumstanc p.8~ Gourley v. City of Longmont ComplaintWHEREFORE, Plaintiff Robert Gourley prays the Court grant the relief requested herein and such other relief as the Court finds just and necessary under the circumstances, Respectfully submitted this 21st day of November, 2016. By: s/ Trevor H_ McGarvey __ Trevor McGarvey #48363, Counsel for Plaintiff Robert Gourley Plaintiffs Address: 13858 N 75! St, Longmont, CO 80503 .9~Gourley v. City of Longmont Complaint