No Pipe Dream v. Larimer County

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.

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¶ 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.

A. Standard of Review and Applicable Law

¶ 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.

B. Analysis

¶ 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.

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