Dismissal appealed in lawsuit against Loveland council

LOVELAND — A state appeals court in Denver will consider whether to uphold or overturn a Larimer District Court’s October dismissal of a lawsuit filed earlier this year by five former Loveland City Council members and three other Loveland residents against the current council and its actions surrounding the proposed Centerra South mixed-use development.

Loveland-based attorney Russell Sinnett filed the appeal late Wednesday.

The lawsuit, filed by former council members Richard Ball, Dave Clark, John Fogle, Don Overcash and Chauncey Taylor, sought the ouster of Loveland 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 on Nov. 21, 2023, 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, 2023, 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.

However, District Judge Laurie Dean called that claim “moot” because, after McWhinney sued the council, alleging breach of contract, council members on Feb. 21 voted to reverse their vote and restore the Centerra South agreements.

Sinnett’s motion asks the appeals court to determine whether the plaintiffs’ claims are indeed moot because “the reinstatement of the Centerra South project did not and cannot erase the fact that the Mayor and certain members of City Council willfully violated the Loveland City Charter, and in doing so, the [plaintiffs’] fundamental right to vote was forever lost.”

The motion also asks the appeals court to decide “whether the trial court erred by applying the Mootness Doctrine when this case meets at least one of the exceptions to the application of the doctrine including, but not limited to: (1) the case presents an issue of broad public concern that is likely to recur; (2) there is a possible recurrence of the controversy between the parties; and (3) material questions for the court’s determination nonetheless persist (the court should continue to hear the case and rule to ‘do complete justice’).”

Dean had written in her 17-page opinion that the eight plaintiffs had no standing to raise 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.”

Dean also had dismissed another lawsuit by Ward 1 resident Peter Gazlay that also targeted the council majority, and the city attorney’s office hired a legal counsel to demand that the plaintiffs in both lawsuits compensate the city for the money it has spent to defend itself. Last week, Sinnett filed responses that contested the city’s demand for remuneration.

Late Friday, Sinnett told BizWest that he does not plan to appeal Dean’s dismissal of the Gazlay lawsuit.

Clark also led a successful petition drive to place a recall of Krenning on the municipal ballot, which will be decided in a special election March 4.

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 the Court of Appeals Colorado, case No. 2024 CA 2195; Ball, Clark, Fogle, Overcash, Mills, Taylor, Taylor and 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.

This article was first published by BizWest, an independent news organization, and is published under a license agreement. © 2024 BizWest Media LLC.

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