Plaintiffs answer Loveland’s motions to dismiss Centerra south lawsuits

LOVELAND — The legal back-and-forth surrounding the Loveland City Council’s actions regarding the Centerra South urban-renewal and finance agreements continued this week, with the attorney for plaintiffs in two separate lawsuits against the city filing his responses to the city’s move to dismiss both complaints.

Loveland-based attorney Russell Sinnett, who filed both lawsuits earlier this year, submitted responses on Monday in Larimer County District Court to the pleas for dismissal that had been submitted July 1 by the Loveland City Attorney’s Office. The city now will have three weeks to file a reply brief to counter Sinnett’s responses, after which verdicts in both cases will be up to District Judge Laurie K. Dean.

“There’s no rule that says she has to give us a ruling on it in a specific time,” Sinnett told BizWest on Wednesday, although he said earlier this month that he expected a decision from her on the city’s dismissal request by the end of August.

In one of the cases, eight plaintiffs, including former Loveland City Council members Richard Ball, Dave Clark, John Fogle, Don Overcash and Chauncey Taylor sued the current city council, seeking the ouster of Mayor Jacki Marsh, Mayor Pro Tem Jon Mallo, and council members Troy Krenning, Erin Black and Laura Light-Kovacs, alleging that they violated the city charter last Nov. 21 by not calling for a public vote on its rescission of the agreements for the proposed Centerra South development with McWhinney Real Estate Services Inc. approved in April and May 2023. The council in February reversed its decision and reinstated the agreements after McWhinney sued.

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

The city asked Dean to dismiss the first lawsuit because, in alleging violations of the charter, they relied on “the false premise that such a decree is tantamount to a criminal conviction” to “demand a decree from this court that the elected officials with whom they disagree be removed from city council.”

The city claimed that the plaintiffs, as private citizens, lack standing to bring their claims, and asserts that their claim is “purely political” because “the remedy available to citizens who do not agree with a vote made by elected officials lies at the ballot box, not the courthouse.”

The city also asserted that the issue of the Nov. 21 vote to rescind the Centerra South agreements is moot because the council reversed that decision after holding an executive session to consider a Feb. 20 settlement agreement offered by McWhinney. That vote, in the wee hours of Feb. 21, is the subject of yet another lawsuit, filed last week  by a Loveland barbershop owner who alleged that the city violated Colorado open-meetings laws when it took that vote.

“I want my cases to stay distinct from the others,” Sinnett told BizWest. “The details are different, but the public just sees one lawsuit after another.”

In the response brief Sinnett filed on Monday, he contended that the issue is not moot because the lawsuit brought by McWhinney in the wake of the vote to rescind “is still an active case that has been stayed until such time as the parties complete their obligations under the Feb. 20 settlement agreement.” He repeated his clients’ contention that the mayor and four council members “willfully violated” the city charter and its new voter-passed rules, and that the “negative consequences” of their vote to rescind the agreements “are immeasurable, irreversible, and ongoing,” tarnishing “the city’s worldwide business image and public relations.”

Sinnett wrote that the resolution, settlement and vote to reverse the rescission “does not ‘erase’ the past willful conduct that gave rise to this action in the same manner that an armed bank robber would not be absolved of criminal culpability by simply agreeing to return the stolen money.”

In its motion to dismiss the Gazlay lawsuit, the city claimed that the plaintiff “lacks standing to assert any of his election-challenge claims” and that “any contest regarding the results of the  Nov. 7, 2023, election has been time-barred under the Colorado Municipal Election Code for over six months.”

Sinnett’s response countered that “the municipal statute cited by defendant as grounds to find the case is time-barred relies upon a statute that is not exclusive to the claims of plaintiff, or mandatory for the legal pursuit of his grievance. Defendant has presented no lawful, binding, and relevant authority which demands the dismissal of this case. The motion should therefore be denied.”

The cases in Larimer County District Court are Richard Ball, Dave Clark, John Fogle, Donald Overcash, Daniel Mills, Chauncey Taylor, Christy Taylor and Claire Haenny v. City of Loveland, case number 2024 CV 30466; and Peter M. Gazlay v. City of Loveland, case number 2024 CV 30469.