Lawsuits against Loveland City Council refiled in Larimer District Court

LOVELAND — The attorney for plaintiffs in two cases filed against the Loveland City Council has withdrawn the pleadings he made last week in Weld County and instead refiled the cases on Tuesday in Larimer County District Court.

“The reason we refiled is that we’ve been litigating for four months and have gotten nowhere,” Loveland-based attorney Russell Sinnett told BizWest on Wednesday. “All that proved is that our municipal court in Loveland doesn’t function as intended. Nobody’s gotten to the merits of our cases yet.”

The cases involve alleged violations of the Loveland city charter, along with alleged constitutional-law violations. In one, which Sinnett originally filed in Loveland Municipal Court in January, eight plaintiffs including former city council members Richard Ball, Dave Clark, John Fogle, Don Overcash and Chauncey Taylor, sued the current council. They alleged that five current City Council members violated the charter last Nov. 21 by not calling for a public vote on its rescission of urban-renewal and financial agreements with McWhinney Real Estate Services Inc. approved in April and May 2023 over its proposed Centerra South development. The council in February reversed its decision and reinstated the agreements after McWhinney sued.

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The lawsuit said the public vote should have been called because Loveland voters in the same Nov. 7 election that propelled council members less amenable to McWhinney’s plans into office had also approved the citizen-initiated Ballot Issue 301, which gave voters the final say on urban-renewal plans.

In the other case, which Sinnett filed in Loveland Municipal Court in February, Ward 1 resident Peter Gazlay claimed unequal treatment under the law because the city failed to conduct a background investigation of the winning candidate in Ward 1, Troy Krenning, and then after he was elected, applied a background test that was different from all other candidates prior to seating him.

However, municipal judges in Loveland said conflicts of interest rendered them unable to hear the cases. An intergovernmental agreement with the city of Greeley moved the cases to municipal court there, but Greeley judge Mark Gonzales determined on April 26 that he did not have jurisdiction to hear the case because of its subject matter.

On May 23, Sinnett submitted “Rule 106” pleadings to the Weld County District Court in an attempt to force Greeley Municipal Court to hear the cases. Rule 106 in Colorado allows people to appeal the decision of a lower body; opponents of development projects sometimes bring Rule 106 cases in an attempt to win a court order overturning cities’ approvals.

However, on Tuesday, Sinnett and his clients opted not to wait for a Rule 106 hearing and ruling, instead taking their case to Larimer County District Court.

“The case had just gone too far astray,” Sinnett told BizWest. “This is not an academic exercise in jurisdiction, so I didn’t want to continue with the complaint for review. I’m not here for academics; I just want my case heard before a court. We filed it in Larimer, so we’ll see what happens. We want our day in court to deal with the unlawful behavior of elected officials, and that behavior can’t be undone.”

“So we filed it in Larimer and we’ll see what happens,” he said, noting that the intergovernmental agreement itself “poses some problems.”

Sinnett also noted that Loveland taxpayers have been on the hook for the city’s defense against the lawsuits, which are nearing $100,000. That concern was shared by Krenning, a defendant in both cases and the only attorney who holds a Loveland City Council seat. Krenning had planned to introduce a motion during Tuesday night’s Loveland City Council meeting directing the city attorney’s office to pursue recovery of the legal fees from the plaintiffs. However, upon learning that Sinnett had refiled the cases on Tuesday, Krenning withdrew his planned motions before the meeting.

“I withdrew it because the Overcash brigade has renewed their litigation in Larimer District Court, so we’ll let them run the tab up, and then I’ll revive my motion to get legal fees at the conclusion of this newest case, which will undoubtedly be dismissed,” Krenning told BizWest on Wednesday.

“They have no clue what they’re doing,” he said, “and in the meantime, the city’s $100,000 deep in defending this nonsense, and no end in sight, apparently. So I will absolutely insist, and I hope others join me, in demanding that the city attorney seek to recover these fees from the plaintiffs and their lawyer.”

Sinnett said the case from the eight plaintiffs already has been assigned to District Judge Laurie Dean, and that the city will have 21 days to answer both new complaints after being served.

The original cases are Richard Ball, et al, vs. city of Loveland, case number 24cv001 in Loveland and SP24-001 in Greeley; and Peter Gazlay vs. city of Loveland, case number 24cv002 in Loveland and SP24-002 in Greeley.

The filing in Weld County District Court is 2024cv30463.

Tuesday’s filings in Larimer County District Court are 2024cv30466 and 2024cv30469.