Loveland, McWhinney file competing responses to summary judgment motions

LOVELAND — The positions remain largely unchanged as McWhinney Real Estate Services Inc. and the city of Loveland exchanged responses to the opposing party’s motions for summary judgment in the case involving the Centerra South development.

The city of Loveland approved an urban renewal area and related master finance agreement for Centerra South last year. After November city council elections, the new council voted to rescind the approval. McWhinney filed suit.

The parties filed motions for summary judgment in Larimer County District Court, and responses were due today.

It was clear from the filings that positions have not changed.

Said the city:

“The entirety of this case is based on a false premise implicit in each of McWhinney’s claims. Both the complaint and the McWhinney motion (for summary judgment) erroneously assume the validity and enforceability of the Centerra South Urban Renewal Plan and the contingent Master Finance and Intergovernmental Agreement. But the Centerra South Plan was never lawfully approved, rendering it and the MFA void ab initio,” which is Latin for “at the start.”

Said McWhinney:

“As forecasted in McWhinney’s motion for summary judgment, the city’s motion for summary judgment asks this court to grant it relief — termination of the Centerra South Urban Renewal Plan and Master Finance Agreement — to which it is not entitled as a matter of law. Worse, it asks for this relief on the basis of its own conduct in carrying out the meetings approving both the plan and the MFA. Even if its own conduct could somehow permit the city to do what the Urban Renewal Law forbids, the stipulated facts show that the city’s actions in approving the plan and the MFA were compliant with the Urban Renewal Law and the Open Public Meetings Law.”

The arguments, of course, run deeper and are more nuanced.

The city’s hat has been hung on the premise that the city failed to provide proper 30-day notice about the public hearing on the urban renewal plan. The city had advertised the hearing for April 18, 2023, but when the plan was not fully ready for discussion, the city opened and continued the hearing until May 2 but did not publish a new notice 30 days in advance of that meeting of the council. “…(C)ontracts allegedly formed without a properly noticed public hearing are void,” the city’s filing said. 

And in a notice to the court, the city’s response said that “This court’s enforcement of public-private development contracts that were not properly formed would constitute a reversible error.”

It said that the city never had any intent of conducting a hearing on April 18 as advertised and “the only purpose of keeping the item on the agenda was to avoid having to issue a new notice.”

McWhinney, meanwhile, argued that continuing public hearings from one meeting to another is a common practice, including in Loveland. 

“Its (city of Loveland) operative Rules of Procedure — signed Jan. 17, 2023, by Mayor (Jacki) Marsh a week before the first presentation on the Centerra South Plan — prescribe the city’s public hearing format. … They expressly allow a second public hearing and say that it ‘need not be separately noticed.’”

McWhinney also argued that even though there was no need for a second public notice, that news reports included date, time, location and videoconference information for the continued public hearing. The city also heard public testimony on April 18 and again on May 3.

“All the city’s arguments … turn on a procedurally improper and untimely challenge to the city council’s public notice… The city whistles past a fatal problem. It cannot challenge its own prior notice,” the developer’s argument said.

It cannot challenge its own notice because it lacks standing and “suffered no injury-in-fact.” And “injury-in-fact cannot be satisfied by self-inflicted harm,” McWhinney said.

For its part, the city argued that “Colorado has never adopted a ‘self-inflicted injury limitation on standing.’”

The case remains on the court’s docket for Feb. 29 and March 1. However, both parties have asked the judge to rule based on the motions and vacate the trial.

The case is McWhinney Real Estate Services, et al, versus city of Loveland, case number 2023cv30956 filed in Larimer County District Court.

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