District judge throws out 2 lawsuits against Loveland

LOVELAND — A Larimer District Court judge on Thursday dismissed a pair of lawsuits filed earlier this year regarding the newly elected Loveland City Council and its actions surrounding the proposed Centerra South mixed-use development.

District Judge Laurie Dean dismissed one complaint filed by five former City Council members and three other Loveland residents, and another filed by a resident of Ward 1. All nine plaintiffs were represented by Loveland-based attorney Russell Sinnett, who told BizWest that “I wholeheartedly disagree with her orders, however it is up to the plaintiffs to decide whether they will pursue an appeal. We will make a decision as to whether we will appeal in the next several days.”

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 before their vote to rescind the urban-renewal and financing agreements for McWhinney Real Estate Services’ proposed Centerra South development that the previous council had approved in April and May 2023.

That lawsuit said a public vote should have been called because Loveland voters in the same Nov. 7 election that propelled Krenning and other council members less amenable to the Centerra South plan into office had also approved the citizen-initiated Ballot Issue 301, which gave voters the final say on urban-renewal plans.

Clark also led a successful petition drive to  place a recall of Krenning on the municipal ballot, but a date for that election can’t be set until courts have ruled on Krenning’s appeals.

Part of the plaintiffs’ contention, Dean wrote, was that the four minority members of the council — Dana Foley, Patrick McFall, Steve Olson and Andrea Samson — “were stifled and otherwise not allowed to participate in the discussion and have  chance to state on the record their opinions, comments or objections” because before both votes to rescind the agreements, Marsh took up most of the 10-minute time limits for discussion with her own statements.

However, Dean wrote in her 17-page opinion that the eight plaintiffs had no standing to raise such a due-process complaint because they weren’t current members of the council and “because the Legislature did not intend to create a private right of action.

“Finally, to the extent that Plaintiffs seek relief under a theory that the City Council’s rescission of resolutions on Nov. 21, 2023 violated the City Charter because they were not subject to subsequent ratification vote by the electorate, such a claim is moot,” she wrote, because the council early on Feb. 21 reversed its votes to rescind the agreements.

Overcash, reached Thursday afternoon, said he didn’t understand Dean’s reasoning.

“I robbed the bank, but I gave the money back a month later. Wasn’t the law still violated? If not, why do we even have a City Charter?” Overcash said.

He said he had not had the chance to read Dean’s ruling or talk with Sinnett or the other plaintiffs about whether they planned to appeal. However, he added, “Where do the citizens have a right to make their feelings known? This was done in great haste the first time the new council met, and within just a few minutes turned back a year’s worth of effort by the previous council. There was no notification, or at least none that was made public.

“Where do citizens get access to the courts to weigh in on this,” Overcash asked. “Which court? Where do they go for a remedy?”

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 at the Nov. 7, 2023, election, and then after he was elected, applied a background test to Krenning that was different from those for all other candidates prior to seating him.

In her ruling issued Thursday, Dean wrote that Gazlay “failed to articulate how the City of Loveland deprived him of a legally protected interest by completing Mr. Krenning’s background check after the election and using a different method of confirmation. … Plaintiff himself was not subject to disparate treatment.”

Dean wrote that Gazlay “has also not established that he had a legally protected interest in certain-background check procedures prior to the election. … Plaintiff has cited no authority (and the Court is aware of none) from which the Court could conclude that deviation from background check procedures in a Candidate Packet creates a legally protected interest for the voters of a municipality.”

Gazlay, she wrote, “has not demonstrated that he had a legally protected interest in

the form or timing of the background checks” and failed to assert that he had been injured by the city’s action.

Gazlay could not be reached for comment before BizWest’s afternoon deadline.

In a telephone call to BizWest on Thursday, Krenning, the only practicing attorney on the council, said neither of Dean’s rulings was a surprise to him.

“Anyone who went through the first year of law school would know these people didn’t have standing to bring these ridiculous claims,” Krenning said, adding that at the next City Council meeting he would ask City Attorney Vincent Junglas to pursue getting the plaintiffs to reimburse the city for its costs in defending against the lawsults.

“We’re $145,000 deep in defending this nonsense,” Krenning said.

The cases are Richard Ball, Dave Clark, John Fogle, Donald Overcash, Daniel Mills, Chauncey Taylor, Christy Taylor and Claire Haenny v. City of Loveland in Larimer District Court, case No. 2024 CV 30466; and Peter M. Gazlay v. City of Loveland in Larimer District Court, case No. 2024 CV 30469.

on Facebook on LinkedIn