23CA1799 No Pipe Dream v Larimer County 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1799 Larimer County District Court No. 20CV30800 Honorable Laurie K. Dean, Judge Honorable Gregory M. Lammons, Judge
No Pipe Dream Corporation, Save the Poudre, and Barry Feldman,
Plaintiffs-Appellants and Cross-Appellees,
v.
Larimer County Board of County Commissioners; Commissioner Tom Donnelly, in his official capacity as a Larimer County Commissioner; and Commissioner Steve Johson, in his official capacity as a Larimer County Commissioner,
Defendants-Appellees,
and
Northern Integrated Supply Project Water Activity Enterprise,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Kuhn and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Foote Law Firm LLC, Michael Foote, Louisville, Colorado, for Plaintiff-Appellant and Cross-Appellee No Pipe Dream Corporation
John M. Barth, Hygiene, Colorado, for Plaintiffs-Appellants and Cross- Appellees Save the Poudre and Barry Feldman William G. Ressue, County Attorney, Frank Haug, Assistant County Attorney, Fort Collins, Colorado, for Defendants-Appellees
Trout Raley, Bennett W. Raley, Peggy E. Montaño, William Davis Wert, Vanya P. Akraboff, Denver, Colorado, for Defendant-Appellee and Cross-Appellant
Daniel L. Money, Windsor, Colorado, for Amicus Curiae Town of Windsor
Vranesh and Raisch, LLP, Peter C. Johnson, Andrea A. Kehrl, Robyn L. Smith, Boulder, Colorado, for Amicus Curiae Town of Erie
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Plaintiffs, No Pipe Dream Corporation, Save the Poudre, and
Barry Feldman, appeal the district court’s judgment entered in
favor of defendants, Larimer County Board of County
Commissioners (the Board), Commissioners Tom Donnelly and
Steve Johnson, and Northern Integrated Supply Project Water
Activity Enterprise (the Enterprise), affirming the Board’s approval
of the Enterprise’s permit application for a water storage reservoir
and transmission pipelines. We affirm the judgment.
I. Background
¶2 In section 24-65.1-101(1)(a), C.R.S. 2024, the General
Assembly declared that “[t]he protection of the utility, value, and
future of all lands within the state . . . is a matter of public
interest.” Local governments are thereby empowered to “designate
[certain] areas and activities of state interest” and, after such
designation, regulate such areas and activities. § 24-65.1-101(2)(b).
One such activity is the “[s]ite selection and construction of major
new domestic water . . . systems.” § 24-65.1-203(1)(a), C.R.S. 2024.
¶3 Consistent with section 24-65.1-404, C.R.S. 2024, Larimer
County designated as a matter of state interest the “[s]iting and
development of new or extended domestic water or sewer
1 transmission lines which are contained within new permanent
easements greater than 30 feet.” Larimer Cnty. Land Use Code
§ 14.4(J) (effective until Mar. 31, 2021) (Land Use Code).1 An entity
that seeks to develop such a project must obtain Board approval.
¶4 One way of securing Board approval is to obtain a permit,
known as a “1041 permit.” A 1041 permit applicant must show
that the project satisfies twelve review criteria delineated in section
14.10(D) of the Land Use Code. Relevant to this appeal, the second
criterion is that “[t]he applicant has presented reasonable siting and
design alternatives or explained why no reasonable alternatives are
available.” Land Use Code § 14.10(D)(2). In lieu of the 1041 permit
process, the Land Use Code also allows for an intergovernmental
agreement between the County and an applicant proposing to
engage in an area or activity of state interest. Land Use Code
§ 14.8(A).
¶5 The Enterprise sought to develop a water storage reservoir,
transmission water pipelines, and associated features, known as
1 All citations to the Land Use Code will be to the version effective
until March 31, 2021, as that was the version in effect at the time of the Board’s action.
2 the Northern Integrated Supply Project (NISP). In 2016, the County
and the Enterprise signed a memorandum of understanding
pursuant to section 14.8(A)(5) of the Land Use Code prior to
engaging in the process of negotiating an intergovernmental
agreement authorizing the NISP. On November 14, 2019, the
Enterprise notified the Board that it wished to switch from the
intergovernmental agreement process to the 1041 permit
application process because the Enterprise felt it would provide
greater transparency and allow for more robust public participation.
¶6 On February 21, 2020, the Enterprise submitted a
1041 permit application for the development of the NISP. The two
main components of the Enterprise’s NISP 1041 permit application
were the pipeline routes through Larimer County and the location of
the Glade Reservoir. The application contained multiple
memoranda, including sections applying generally to NISP, as well
as some sections applying only to the pipelines and others applying
only to Glade Reservoir.
¶7 In Technical Memorandum No. 1 – Project Description, the
Enterprise addressed the reasonable alternatives criterion as
follows:
3 After many years of federal scientific studies and required environmental compliance with substantial public input, including input from Larimer County, approvals by the agencies of the State of Colorado and the permits issuing for the current project configuration, which is the subject of this permit application, it is not possible at this juncture for the Applicant to submit a permit request for another Project configuration or alternative. Having incongruent permit applications at various agencies is not a viable option, therefore no reasonable alternatives are possible at this time as the other state and federal permitting agencies have acted.
(Emphasis added.)
¶8 In Technical Memorandum No. 2 – Larimer County 1041
Evaluation Criteria, the Enterprise addressed the reasonable
alternatives criterion for the pipelines specifically, saying “[a]fter
further discussion with the County, the pipeline routing identified
in the latest Technical Memorandum No. 3 is the final alignment,
recognizing that minor adjustments may be necessary in specific
locations.” In Technical Memorandum No. 3 – Conveyance Pipeline
Route Study & Analysis, the Enterprise presented its “preferred”
pipeline route, as well as its prior analysis that supported selecting
that route over several alternative routes.
4 ¶9 Ultimately, the Board approved the permit by a vote of two to
one, finding, as pertinent here, that the Enterprise had met section
14.10(D)(2) of the Land Use Code. Specifically, the Board found
that
[the Enterprise’s] application presents a lengthy review of over 200 alternatives to NISP including alternative reservoir locations, expansion of existing reservoirs, use of ground aquifers in lieu of NISP, and a “No Action” plan where NISP would not be developed. Per the Army Corp of Engineers in the [Final Environmental Impact Statement], the proposed Glade Reservoir is the most appropriate and least impactful option when considering the mitigation plans imposed.
Many alternative pipeline routes for each segment were studied and presented in the application. These route alternatives were along a specific line which allowed for evaluation of actual impacts. Numerous factors for the route combinations were evaluated, including disruption to surrounding property, existing development and utilities, the number of properties impacted, residential and urbanized areas, natural hazards, and environmental and wildlife impacts.
¶ 10 Plaintiffs filed a complaint in the Larimer County District
Court challenging the Board’s approval. They sought district court
review of the Board’s decision under C.R.C.P. 106(a)(4), contending
that the Board had abused its discretion or exceeded its jurisdiction
5 by approving the Enterprise’s 1041 permit application. They also
sought a declaration under C.R.C.P. 57 (or, in the alternative,
C.R.C.P. 106(a)(4)) that the participation of two of the county
commissioners in the approval of the 1041 permit application
violated plaintiffs’ due process rights because the commissioners
were biased and should have recused themselves. The district
court dismissed the due process claim under C.R.C.P. 12(b)(5) and
affirmed the Board’s approval of the 1041 permit application.
II. Dismissal of the Due Process Claim
¶ 11 We first reject plaintiffs’ contention that the district court erred
by granting defendants’ motion to dismiss the due process bias
claim.
A. Standard of Review and Applicable Law
¶ 12 We review de novo a district court’s order granting a C.R.C.P.
12(b)(5) motion to dismiss. Williams v. Rock-Tenn Servs., Inc., 2016
COA 18, ¶ 9. We accept all factual averments in the complaint as
true and view them in the light most favorable to the plaintiff. Pub.
Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 386 (Colo. 2001). We
also review de novo a claim that a party’s due process rights were
violated. Black v. Black, 2020 COA 64M ¶ 103.
6 ¶ 13 “The due process requirement of neutrality in adjudicative
proceedings entitles a person to an impartial decision-maker.” No
Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 41.
“An impartial adjudication requires ‘the absence of a personal,
financial, or official stake in the decision evidencing a conflict of
interest on the part of a decision-maker.’” Id. (quoting Scott v. City
of Englewood, 672 P.2d 225, 228 (Colo. App. 1983)). “This concept
encompasses both the absence of actual bias and the risk of actual
bias.” Id.
¶ 14 “These due process mandates are not limited to judicial
officers.” Id. at ¶ 44.
[W]hen decision-making by nonjudicial officers bears sufficient similarities to the adjudicatory function performed by courts, we consider it “quasi-judicial” and thereby subject to the basic requirements of due process. While such actors must ensure the fundamental fairness of the proceeding, they are not held to the more rigorous disqualification standards applicable to judicial officers through ethical codes or local rules of procedure. Rather, the inquiry is simply whether actual bias or a risk of actual bias exists so as to compromise the neutrality of the quasi-judicial actor.
Id. (citations omitted).
7 ¶ 15 “[T]hose serving in quasi-judicial capacities are presumed to
act with ‘integrity, honesty, and impartiality . . . .’” Id. at ¶ 45
(quoting Scott, 672 P.2d at 228). To overcome this presumption and
invalidate an agency action, a plaintiff must show “substantial
prejudice.” Whitelaw v. Denver City Council, 2017 COA 47, ¶ 11; No
Laporte Gravel Corp., ¶ 45. In this regard, a plaintiff must show
that the conflict, if any, had an impact “on the outcome of the
proceeding.” Id. at ¶ 12.
B. Analysis
¶ 16 Plaintiffs contend that the complaint sufficiently pleaded a due
process bias claim. In support of this contention, they point to
allegations in the complaint regarding Donnelly’s and Johnson’s
decade-long public advocacy in support of NISP, a text message
sent by Donnelly, and an email sent by Johnson. These allegations
are insufficient to state a due process bias claim.2
2 It is immaterial whether plaintiffs brought the due process
violation claim pursuant to C.R.C.P. 57 or 106(a)(4) because either way, plaintiffs have failed to state a claim upon which relief may be granted. Thus, we need not resolve the parties’ dispute over whether an as-applied constitutional challenge is cognizable under C.R.C.P. 57.
8 1. Public Advocacy for a Decade
¶ 17 Plaintiffs highlight allegations in the complaint that both
commissioners had publicly advocated for NISP for a decade,
including that they met with the Enterprise to discuss NISP;
advocated, publicly supported, and endorsed NISP; attended and
spoke at multiple rallies organized by the Enterprise and
supported/endorsed NISP at such events; made public statements
supporting/endorsing NISP in their official capacities as
commissioners; and allowed the Enterprise to list their names as
supporting/endorsing NISP. They also point to allegations in the
complaint that (1) the Enterprise prepared a document stating that
its strategy was to meet with key people including Johnson and
Donnelly to obtain their support/endorsement; and (2) the
Enterprise thanked Johnson for his support in an email, and
Johnson replied that he appreciated being mentioned in an article
stating that all three commissioners supported NISP.
¶ 18 Reading these allegations in the light most favorable to
plaintiffs and taking them as true, they do not allege that either
commissioner had a personal, financial, or official stake in the
decision of the Enterprise’s 1041 permit application evidencing a
9 conflict of interest. At most, these communications demonstrate a
public expression of opinion or the taking of a political stance on a
policy matter before deciding a particular issue. “The taking of a
public stance on a policy issue related to the upcoming hearing,
however, ‘does not, in the absence of a showing of bias, disqualify
the decision-maker.’” Meyerstein v. City of Aspen, 282 P.3d 456,
468 (Colo. App. 2011) (quoting Scott, 672 P.2d at 228). Indeed, we
agree with the district court that the public expects elected officials
to make public comments on policy matters and that doing so
before an election allows for greater transparency. Such conduct,
without more, does not disqualify officials from their quasi-judicial
role. See id.
¶ 19 Further, plaintiffs have not alleged facts sufficient to rebut the
“presumption of integrity, honesty, and impartiality” because they
have not alleged how these public comments had any impact on the
outcome of the proceeding. Whitelaw, ¶ 11 (quoting Scott, 672 P.2d
at 227). Plaintiffs did not allege in their complaint that either
commissioner stated how he would vote on the Enterprise’s 1041
permit application irrespective of what the quasi-judicial process
revealed. See City of Manassa v. Ruff, 235 P.3d 1051, 1058 (Colo.
10 2010) (“[I]n the absence of evidence . . . the mere possibility” of
prejudice “simply poses too remote and insubstantial a risk of
actual bias” to implicate the guarantee of due process.). Thus,
these statements do not evince actual bias or a risk of actual bias.3
2. Text Message
¶ 20 Plaintiffs also point to an allegation in their complaint
regarding an August 2019 text message exchange between Donnelly
and the Enterprise’s Public Information Officer, in which Donnelly
said, “You guys are getting ready to blow this deal,” and “Northern
has no idea what is in store for them if they let this slide into the
next boards [sic] term.” But Donnelly sent this text message when
the Enterprise and the county were negotiating an
intergovernmental agreement, as opposed to during the 1041
permit process. It was not until approximately three months after
3 We decline to address plaintiffs’ conclusory assertion that
Donnelly’s and Johnson’s “public advocacy also violated [a]rticle XXIX[, section ](1)(c) of the Colorado Constitution by creating ‘a justifiable impression among members of the public that such [public] trust is being violated’ by their refusal to recuse themselves.” See Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶ 18 (“We generally decline to address arguments presented to us in a conclusory manner that are lacking citations to any supporting authority.”), aff’d, 2018 CO 39.
11 this text message was sent that the Enterprise notified the Board
that it wanted to switch from the intergovernmental agreement
process to the 1041 permit process and approximately six months
after this text message was sent that the Enterprise submitted its
1041 permit application.
3. Email
¶ 21 Finally, plaintiffs point to an email Johnson sent to someone
named Mandy — who is not otherwise identified. In this email to
Mandy, which appears to be a reply to a previous email (that is not
in the record), Johnson said, “No it’s not a bad joke. It’s the result
of a disgusting and disingenuous email blast by Save the Poudre[,]
slanted and missing a lot of the facts designed to make the County
look bad. Needless to say the[y] have lost ALL credibility with me.”
Johnson then discussed the time requirements for when 1041
permit hearings needed to take place under the law, that the Board
had scheduled the hearing as late as possible, and that the Board
and an attorney were looking into whether the Board could delay
the hearings. This email postdated the Enterprise’s submission of
its 1041 permit application but concerned the timing of the hearing
rather than the substance of the Enterprise’s 1041 permit
12 application. Moreover, it does not follow that Johnson would
approve the Enterprise’s 1041 permit application simply because
Save the Poudre lost credibility with him. Therefore, this email
exchange does not evince actual bias or a risk of actual bias with
respect to the 1041 permit process.
¶ 22 In sum, plaintiffs’ complaint failed to sufficiently allege a due
process violation. Thus, the district court did not err by dismissing
this claim.
III. Reasonable Siting and Design Alternatives
¶ 23 We turn, then, to the merits of plaintiffs’ challenge to the
Board’s approval of the 1041 permit. Plaintiffs contend that the
Board abused its discretion by finding that the Enterprise’s 1041
permit application satisfied section 14.10(D)(2) of the Land Use
Code. We discern no reversible error.
¶ 24 “Review of a governmental body’s decision pursuant to Rule
106(a)(4) requires an appellate court to review the decision of the
governmental body itself rather than the district court’s
determination regarding the governmental body’s decision.” No
Laporte Gravel Corp., ¶ 23 (quoting Bd. of Cnty. Comm’rs v. O’Dell,
13 920 P.2d 48, 50 (Colo. 1996)). “Our review is limited to deciding
whether the governmental body’s decision was an abuse of
discretion, based on the evidence in the record before it, or was
made in excess of its jurisdiction.” Id. “A governmental body
abuses its discretion if it misinterprets or misapplies the law or if no
competent record evidence supports its decision.” Id. at ¶ 24.
¶ 25 We review and interpret the Land Use Code de novo and apply
ordinary rules of statutory interpretation. Id. at ¶ 26.
¶ 26 The Enterprise argues that it satisfied the criterion in section
14.10(D)(2) both for the proposed reservoir and for the proposed
pipelines.
¶ 27 As to the siting of the reservoir, the Enterprise contends that it
explained that no alternatives could be presented because of the
yearslong process that had already taken place to obtain federal
approval of the reservoir location.
¶ 28 Plaintiffs argue that this explanation fails to comply with the
requirements of section 14.10(D)(2) of the Land Use Code because it
does not “provide any legal or technical support for why no
reasonable siting and design alternatives were available.” They
14 further contend that to allow the federal approval process to take
precedence “renders meaningless the County’s authority over site
selection and design of major water projects” and is inconsistent
with section 14.6(B) of the Land Use Code, which provides that
“[r]eview or approval of a project by a federal or state agency does
not obviate, and will not substitute for, the need to obtain a 1041
permit for that project.”
¶ 29 As for the pipeline component of its application, the Enterprise
contends that it elected to comply with section 14.10(D)(2) of the
Land Use Code by “presenting reasonable siting and design
alternatives.” Specifically, the Enterprise submitted Technical
Memorandum No. 3, which provided a “‘site analysis process and
specific review criteria’ for alternative pipeline routes.”
¶ 30 Plaintiffs counter that the alternatives discussed in Technical
Memorandum No. 3 were nothing more than options that the
Enterprise had considered and rejected. The permit application, on
the other hand, only presented to the Board the Enterprise’s single
preferred pipeline route. Plaintiffs argue that the generally
applicable statement in Technical Memorandum No. 1 — that it was
not possible to present an alternative configuration for the
15 project — makes it clear that Technical Memorandum No. 3 did not
present alternatives for the Board’s consideration but, rather,
simply discussed options that the Enterprise had already ruled out.
¶ 31 Given the Board’s language in its finding, it is not entirely
clear whether the Board determined that the Enterprise had
satisfied section 14.10(D)(2) by providing alternatives or by
explaining that none could be provided. While the Board observed
that the application “present[ed] a lengthy review of over 200
alternatives” for the reservoir location, it did not say the Board
considered these alternatives; rather, it explained that the Army
Corps of Engineers had concluded that the proposed reservoir
location was the “most appropriate and least impactful option.” As
for the pipelines, the Board described, in passive language, that
“[m]any alternative pipeline routes for each segment were studied
and presented in the application” and that numerous factors “were
evaluated” — not saying whether the Board evaluated these
alternatives or factors.4
4 Notably, the record reflects that county representatives had
provided input during the discussions with the federal government as well — even before the 1041 permit application was filed.
16 ¶ 32 But we need not resolve whether the Board considered
alternatives or, instead, accepted the assertion that no alternatives
were viable. The requirement of section 14.10(D)(2) is stated in the
disjunctive — “[t]he applicant has presented reasonable siting and
design alternatives or explained why no reasonable alternatives are
available.” (Emphasis added.) There is record support for either
conclusion.5 Thus, regardless of which path the Board took in
finding that this criterion was met, we cannot say it abused its
discretion. See No Laporte Gravel Corp., ¶ 24.
¶ 33 Nor do we agree with plaintiffs’ objection that the Board’s
action essentially abdicated its authority over site selection and
design. It was certainly within the Board’s power to agree with the
federal government’s determination. Similarly, we reject plaintiffs’
contention that the Board’s action runs afoul of section 14.6(B) of
the Land Use Code. That provision means only that,
5 Plaintiffs’ contention that there is no record support is unavailing.
Their arguments simply ask us to reweigh the evidence, which we cannot do. See No Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 25 (“Because we are not the fact finder, we ‘cannot weigh the evidence or substitute our own judgment for that of the [administrative body].’” (quoting Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo. App. 2008))) (alteration in original).
17 notwithstanding receiving the approval of the federal government,
the Enterprise had to seek the Board’s approval of a 1041 permit.
It did so.
¶ 34 Because the Board did not abuse its discretion, we affirm the
district court’s judgment.
IV. Disposition
¶ 35 The judgment is affirmed.
JUDGE KUHN and JUDGE TAUBMAN concur.