Elk Creek Fire files motion to dismiss

Developer lawsuit about a fire agreement that fire board voted down

Deb Hurley Brobst
dbrobst@coloradocommunitymedia.com
Posted 7/9/21

The Elk Creek Fire Protection District has filed a motion to ask a judge to dismiss a lawsuit filed by the company trying to build a controversial housing development behind Conifer Safeway. The …

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Elk Creek Fire files motion to dismiss

Developer lawsuit about a fire agreement that fire board voted down

Posted

The Elk Creek Fire Protection District has filed a motion to ask a judge to dismiss a lawsuit filed by the company trying to build a controversial housing development behind Conifer Safeway.

The breach-of-contract lawsuit should be dismissed, according to the motion filed on June 29 in district court in Jefferson County, because the fire district never promised to approve a Fire Service Expansion Agreement with developer Foothills Housing 1.

“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,” the motion to dismiss said. “Moreover, Elk Creek never made any enforceable promise to (Foothills) regarding Elk Creek's service of the subject project.”

Foothills Housing 1 wants to build 188 residential units on 47 acres. The development was originally called Conifer Commons and is now called Conifer Center.

The Fire Service Expansion Agreement 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. In exchange, the fire department would have the equipment and staff to fight fires in three-story buildings planned in the development, and department officials would write a letter to Jefferson County stating it could serve the proposed development.

On April 8, the Elk Creek Fire board voted 3-2 not to approve the Fire Service Expansion Agreement. 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. 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.

Background

In April 2020 after Foothills filed it rezoning application, 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 document that the fire board denied.

Foothills' lawsuit alleges 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.”

The lawsuit asks 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.”

The motion to dismiss counters: “(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.”

Many area residents who commented on the Conifer Center development to Jeffco Planning & Zoning and the county commissioners.have been vehemently opposed. Community concerns to the development are typical of those raised about large projects in the foothills: water availability, wildfire evacuations, fire protection and the number of additional cars that would fill already congested roadways, like nearby U.S. 285.

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