Developer plans to appeal dismissal of lawsuit against Elk Creek Fire

Deb Hurley Brobst
dbrobst@coloradocommunitymedia.com
Posted 5/25/22

The developer trying to compel the Elk Creek Fire Protection District to sign a Fire Service Expansion Agreement has filed the paperwork indicating it plans to appeal a district court judge’s decision to dismiss the lawsuit.

This item is available in full to subscribers.

Please log in to continue

Username
Password
Log in

Don't have an ID?


Print subscribers

If you're a print subscriber, but do not yet have an online account, click here to create one.

Non-subscribers

Click here to see your options for becoming a subscriber.

If you made a voluntary contribution in 2021-2022, but do not yet have an online account, click here to create one at no additional charge. VIP Digital Access includes access to all websites and online content.


Our print publications are advertiser supported. For those wishing to access our content online, we have implemented a small charge so we may continue to provide our valued readers and community with unique, high quality local content. Thank you for supporting your local newspaper.

Developer plans to appeal dismissal of lawsuit against Elk Creek Fire

Posted

The developer trying to compel the Elk Creek Fire Protection District to sign a Fire Service Expansion Agreement has filed the paperwork indicating it plans to appeal a district court judge’s decision to dismiss the lawsuit.

Foothills Housing 1 has told the court that it has retained new attorneys and will appeal to the Court of Appeals, wanting the court to require the fire district to sign the agreement that would provide it with adequate equipment and personnel to provide fire and medical services to the property behind Safeway where the developer hopes to build 188 residential units.

The breach-of-contract lawsuit, originally filed in district court in Jefferson County a year ago, says Elk Creek Fire negotiated the agreement with Foothills Housing 1, led Foothills to believe it would be approved, and then the district’s board denied it.

On April 8, 2021, the Elk Creek Fire board voted 3-2 not to approve the Fire Service Expansion Agreement that would have allowed Foothills to spend about $3 million to buy the district a fire truck and pay part of the salaries for three additional firefighters. Those voting to approve the agreement said it would improve fire service for all residents in the district.

Those who voted against said they felt the agreement would give the appearance that the developer was trying to get preferential treatment through the agreement. In addition, they were unhappy with what one board member called a “gag order” that didn’t allow district officials to say anything negative about the development once the agreement was signed.

The development originally was called Conifer Commons and is now called Conifer Center. Its hearing before the Jeffco Planning Commission is on hold until the lawsuit is settled.

Many area residents are vehemently opposed to the development, and they have voiced their concerns to Jeffco Planning & Zoning and the county commissioners. Their concerns are typical of those in the foothills who oppose large developments: water availability, wildfire evacuations, fire protection and the number of additional cars that would fill already congested U.S. 285.

Background

In April 2020 after Foothills filed it rezoning application, Elk Creek Fire Chief Jacob Ware wrote a letter to Jefferson County Planning & Zoning stating: “The fire district would be ‘unable to protect’ the proposed development because the fire district lacks the funding mechanism, infrastructure, staffing, operational resources and specialized firefighting apparatus to service the proposed higher density rezoning use. The fire district would recommend that the rezoning be denied at this time to allow further study of all the impacts of the proposed rezoning.”

Subsequently, Foothills and Elk Creek Fire representatives began negotiations that resulted in the Fire Service Expansion Agreement. If the agreement was signed, the fire department’s objection to the development would be gone, and the developer could move forward with the rezoning application.

The lawsuit alleged that “despite previous agreements and promises, as well as what is fiscally responsible for Elk Creek, its Board of Directors has taken steps to thwart development plans of Foothills on the project. Specifically … Elk Creek repudiated its prior agreement with Foothills and rejected the Fire Service Expansion Agreement.”

Foothills also contended in the lawsuit that “Elk Creek’s efforts to become involved in land use planning … are beyond its statutory powers.”

Foothills was seeking a court order to appoint a receiver to remedy what the lawsuit calls “the severe mismanagement and dereliction committed by the Board of Directors of Elk Creek to the detriment of Elk Creek’s constituents.”

The lawsuit also asked the court to order Elk Creek to sign the agreement and to pay “substantial, continuing and increasing damages resulting from Elk Creek’s repudiation and breach of its obligations to provide service to Foothills.”

In the responses to the lawsuit allegations, Elk Creek attorneys said negotiating an agreement didn’t automatically mean it would be approved by the elected Elk Creek board of directors.

“Although (Foothills) and Elk Creek engaged in negotiations regarding the Fire Service Expansion Agreement, there was never a meeting of the minds, and the agreement was never executed by Elk Creek,” Elk Creek’s attorneys said. “Moreover, Elk Creek never made any enforceable promise to (Foothills) regarding Elk Creek's service of the subject project.”

The motion to dismiss continues: “(Foothills) ostensibly alleges that there was some kind of `agreement to agree.' … A purported agreement to agree is unenforceable.”

It says Foothills' representative Stuart Borne bringing a signed draft of the agreement to the Elk Creek Board of Directors was “at best … an offer of a contract with Elk Creek.”

Comments

Our Papers

Ad blocker detected

We have noticed you are using an ad blocking plugin in your browser.

The revenue we receive from our advertisers helps make this site possible. We request you whitelist our site.