DISTRICT COURT, JEFFERSON COUNTY, COLORADO

Transcription

1 DISTRICT COURT, JEFFERSON COUNTY, COLORADO 100 Jefferson County Parkway Golden, CO Plaintiff: APPLEWOOD PROPERTY OWNERS ASSOCIATION, a Colorado non-profit corporation, in its own right and on behalf of its members v. Defendants: JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS; COORS BREWING COMPANY; and APPLEWOOD WEST HOLDINGS, LLC. Attorney for Plaintiff: Stewart McNab Jeffery W. Schwarz Carver Schwarz McNab Kamper & Forbes, LLC 1600 Stout Street, Suite 1700 Denver, CO Phone: Fax: smcnab@csmkf.com; Atty. Reg. #: jschwarz@csmkf.com; Atty. Reg. #: COMPLAINT COURT USE ONLY Case Number: Div:, Ctrm: Plaintiff Applewood Property Owners Association, through its undersigned attorneys, states the following as its Complaint: STATEMENT OF THE CASE 1. Over 40 years after Colorado acted to preserve access to valuable minerals in populous counties, one such deposit is at risk of being overlain by 400 single family houses, forever preventing its extraction and use. This case seeks a declaratory judgment about the interpretation and applicability of the Minerals Preservation Act (C.R.S , et seq.) with respect to a acre tract in unincorporated Jefferson County on which is located the Applewood Golf Course ( Applewood ). Applewood is located atop a commercial deposit of sand and gravel, and the Minerals Preservation Act prohibits a board of county commissioners from rezoning areas, such as Applewood, containing a known commercial mineral deposit in { }

2 a manner which would interfere with the present or future excavation of such deposit by an extractor. C.R.S (1). 2. Notwithstanding this clear prohibition, defendant Applewood West Holdings LLC, has applied for, and Jefferson County is considering, a rezoning of the Applewood property that would allow for the construction of 400 single family residences. Because such a development is entirely incompatible with the extraction of the mineral resources beneath Applewood, any rezoning would be in violation of the law. A declaration clarifying the applicability of the Minerals Preservation Act will prevent the parties unnecessary expenditure of resources on a rezoning effort unsupported by law. PARTIES 3. Applewood Property Owners Association ( APOA ) is a Colorado nonprofit corporation established in 1957 which serves as the homeowners association for 1000 households located in an area west of Wheat Ridge and east of Golden in Jefferson County. The area encompassed by the APOA includes the Applewood property and the property is contiguous with homes represented by the APOA. Among its purposes, APOA was formed to protect the interests of its members in connection with zoning matters and to take action to promote or protect the property interests and welfare of its members. 4. Defendant Jefferson County Board of County Commissioners ( BOCC ) is a three-member board of elected officials authorized by, and having the powers enumerated in, Colorado statute, including without limitation C.R.S The current County Commissioners in Jefferson County are Libby Szabo, Casey Tighe and Donald Rosier. 5. Defendant Applewood West Holdings, LLC ( AWH ) is a Colorado limited liability company. 6. Defendant Coors Brewing Company ( Coors ) is a Colorado corporation. A. The Minerals Preservation Act GENERAL ALLEGATIONS 7. In recognition that commercial mineral deposits are essential to the state s economy and that populous counties faced a shortage of such deposits, in 1973 the General Assembly passed the Minerals Preservation Act to preserve the access to and extraction of such deposits in populous counties. C.R.S A commercial mineral deposit is: a natural mineral deposit of limestone used for construction purposes, coal, sand, gravel, and quarry aggregate, for which extraction by an extractor is or will be commercially feasible and regarding which it can be demonstrated by geologic, mineralogic, or other scientific data that { } 2

3 C.R.S (1). such deposit has significant economic or strategic value to the area, state, or nation. 9. Jefferson County, because its population exceeds 65,000 inhabitants, is a populous county. C.R.S (3). 10. The Minerals Preservation Act first called for the state geological survey to study commercial mineral deposits in the populous counties to identify and locate the deposits. C.R.S The study was required to include maps showing such commercial mineral deposits. Id. The required study was published in 1974 as Colorado Geological Survey Special Publication 5-A ( Sand, Gravel, and Quarry Aggregate Resources Colorado Front Range Counties ) and Special Publication 5-B ( Atlas of Sand, Gravel, and Quarry Aggregate Resources Colorado Front Range Counties ). 11. The planning commission for each of the populous counties was then required, with the aid of the maps generated from the state study, to study the commercial mineral deposits in the county and develop a master plan for the extraction of such deposits. C.R.S (1). The county commissioners were to adopt a master plan for extraction of commercial mineral deposits. C.R.S (4). 12. Finally, to effect its goal of preserving access to and extraction of commercial mineral deposits, the Act limited the power of counties with respect to rezoning areas containing commercial mineral deposits as follows: After July 1, 1973, no board of county commissioners, governing body of any city and county, city, or town, or other governmental authority which has control over zoning shall, by zoning, rezoning, granting a variance, or other official action or inaction, permit the use of any area known to contain a commercial mineral deposit in a manner which would interfere with the present or future extraction of such deposit by an extractor. C.R.S (1). B. Jefferson County Mineral Policy Plan and Master Plan 13. On March 23, 1977, in conformance with the requirements of C.R.S , the Jefferson County Planning Commission approved a master plan for the extraction of commercial mineral deposits of sand and gravel and quarry aggregate within the County including a map and related textual materials. Called the Jefferson County Mineral Extraction Policy Plan (hereinafter Extraction Plan ), it was approved by the BOCC on June 28, The Extraction Plan includes a map titled Relative Quality of Sand, Gravel and Quarry Aggregate Resources (hereinafter Extraction Plan Map ), identifying areas of Good, Moderate, Poor and Very Poor Quality. Good Quality resources, the most highly ranked, are further described in the Extraction Plan as containing Material that is of high commercial value and useful for all or most commercial applications. { } 3

4 15. On July 2, 2013, Jefferson County Planning and Zoning Division prepared a map titled Quality of Sand, Gravel and Quarry Aggregate Resources in Jefferson County (hereinafter P&Z Map ). The P&Z Map cites the Extraction Plan as the source of its resource data. The P&Z Map is part of the current Jefferson County Comprehensive Master Plan, adopted October 9, C. Applewood Golf Course 16. Applewood is a public 18-hole golf course constructed in the 1950 s and is currently owned by Coors. It occupies a acre tract, a significant portion of which is zoned as part of a Planned Development ( P.D. ) approved in Jefferson County Zoning Case No. B Land uses in the P.D. include those then permitted by the I-1 zoning classification and those permitted in the A-2 zoning classification, or as an alternative to the uses allowed above, the Planned Development area may also be developed by removing gravel from the property and converting the excavated areas into water storage or detention reservoirs. Indeed according to the Journal of the Commissioners entry relating to the P.D. case, the stated purpose of the rezoning application was for "[b]rewery reservoirs and gravel excavation," or in other words to obtain the right to mine gravel, which would not otherwise have been permitted under the prior zoning. 17. On the Extraction Plan Map, Applewood is located in an area defined as Good Quality and on the P&Z Map as Good. 18. Applewood is underlain by known commercial mineral deposits as defined in the Minerals Preservation Act. D. The Proposed Development 19. On or about June 26, 2015, AWH submitted a Development Permit Application to the Jefferson County Planning and Zoning Division requesting that the parcel where Applewood is located be rezoned to a new Planned Development for residential, and Park and Open space uses. More particularly, AWH plans to construct 400 single family homes with an alleged overall gross density of 2.8 dwelling units per acre along with roads, utilities and related infrastructure. 20. While the zoning application mentions the existing zoning (which permits sand and gravel mining) it neglects to make any reference to the Minerals Preservation Act or its applicability to the Applewood property. The existence and import of the Minerals Preservation Act was brought to the attention of AWH on May 4, 2015, when APOA filed a position paper regarding the statute in AWH s Pre-Application case with the county. Thus AWH s request for rezoning can only be interpreted as a statement that it disputes APOA s contention that the Act plainly prevents the requested rezoning. 21. The requested rezoning, if approved, would interfere with the present or future extraction of a known commercial mineral deposit, in violation of the law. { } 4

5 FIRST CLAIM FOR RELIEF Declaratory Judgment 22. APOA realleges and incorporates by reference the allegations in paragraphs 1 through 21 of its Complaint, as if fully set forth herein. 23. District courts shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. C.R.C.P. 57(a). This Rule is declared to be remedial; its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered. C.R.C.P. 57(k). 24. The BOCC was only delegated the power to plan for the extraction of commercial mineral deposits. The BOCC does not have jurisdiction to determine the applicability and construction of the Minerals Preservation Act, by which the State identified commercial mineral deposits essential to the State s economy. In this instance, therefore, the Court has the power to determine the applicability of the Minerals Preservation Act to the Applewood Property. 25. Here, a present dispute, a case and controversy exist between the parties concerning their respective legal rights with respect to the applicability of the Minerals Preservation Act to the Applewood property and whether the property can be rezoned to permit the construction of 400 homes and related infrastructure. 26. Pursuant to C.R.C.P. 57 and the Uniform Declaratory Judgments Law (C.R.S et seq.), this Court should issue a declaratory judgment declaring: a. That the Applewood property contains a known commercial mineral deposit as defined in the Minerals Preservation Act; b. that any rezoning to a Planned Development for residential uses would interfere with the present or future extraction of a known commercial mineral deposit; and c. that rezoning the Applewood property for residential uses beyond those permitted by its current zoning would be in violation of C.R.S (1) and is therefore prohibited. SECOND CLAIM FOR RELIEF Injunction 27. APOA realleges and incorporates by reference the allegations in paragraphs 1 through 26 of its Complaint, as if fully set forth herein. 28. Because of the existence of a commercial mineral deposit, any rezoning of the Applewood property requires the construction of the Minerals Preservation Act and a determination of its applicability. The BOCC does not have the jurisdiction to determine the applicability and construction of the Minerals Preservation Act, by which the State identified commercial mineral deposits essential to the State s economy. { } 5

6 Thus, the entry of an injunction preventing a rezoning violating the Minerals Preservation Act is necessary. 29. Because of existence of a commercial mineral deposit on the Applewood property and the fact that the nature and extent of the development if the property is rezoned will prevent the extraction of that deposit, APOA has a reasonable probability of success on the merits. 30. There is danger of real, immedíate and irreparable injury which may be prevented by injunctive relief. 31. APOA has no plain, speedy, and adequate remedy at law. 32. The public interest will not be disservice by an injunction. 33. The balance of equities favors an injunction. WH EREFORE, Plaíntiffs Applewood Property Owners Association respectfully requests that judgment be entered as follows: a. For a declaratory judgment as described in Paragraph 25, above; b. For an injunction prohibiting the BOCC from rezoning the Applewood property in a way that violated the Minerals Preservation Act; c. for attorneys'fees and costs; and d. for such other relief as the Court deems proper. Dated:.,7'lZS,201s Respectfully su bmitted, CARVER SCHWARZ McNAB KAMPER & FORBES, LLC Duly Jeffrey a. Schwarz Attorneys for PLAINTIFF APPLEWOOD PROPERTY OWNERS ASSOCIATION { j} 6