Heron Pointe: A tale of dueling lawsuits
By John Gardner
It’s now clear that the Heron Pointe opposition didn’t exactly give up so easily when they reached an agreement not to file a lawsuit against the Town of Berthoud for allegedly denying petitioners due process. Rather, the opposition agreed to not file the lawsuit only if another lawsuit filed against the representatives named in the petitions was also dismissed.
The latter complaint, filed by former Secretary of State Scott Gessler on behalf of Loveland resident Jacob Pierson, alleges that Berthoud residents Gary West and Kristopher Jennett failed to register an issue committee with the town clerk’s office by the specified deadline date as required by state campaign finance laws.
The complaint, filed on April 1, 2015, alleges that West and Jennett, or other proponents of the referendums, raised funds, “solicited and collected money,” to support the ballot issue. Failing to register an issue committee with the town clerk’s office is a violation of state campaign finance laws.
West and Jennett are listed as “designated representatives” on the referendum petitions to put to a public vote the Heron Pointe annexation and associated ordinances.
Under Colorado law, an issue committee is formed when any group or two or more persons has a major purpose of supporting or opposing a ballot issue or question, or has accepted or made contributions or expenditures in excess of $200 for the same purpose.
Colorado law stipulates that proponents are required to register their group as an issue committee within 10 days of receiving a contribution or making any expenditure to support or oppose the ballot issue, the complaint states.
“They failed to register an issue committee with the town clerk by Feb. 9, 2015, and are therefore subject to a $50-per-day fine for failure to file the committee registration paperwork,” the complaint states.
The complaints requests that West and Jennett register as an issue committee and pay the $50-per-day fine as well. As of the time the complaint was filed, that fine was $2,550.
According to West, he and Jennett signed a settlement agreement not to pursue further legal action against the Town of Berthoud as long as the complaint filed against them was dismissed. But he wasn’t exactly thrilled about the situation.
“Basically, we would not attempt in any way to throw road blocks in front of the developer,” West said of the agreement. “It was basically a shut up and go away [agreement].”
“Every statement in the complaint was false,” West added.
West argues that he and Jennett were not bound to register as an issue committee because they were individuals and they didn’t receive any money or compensation for the cause and hadn’t raised money for it either.
“We were simply allowing our names to be used on the petition because they had to have a resident of Berthoud named on the petition,” West said.
Regardless, they both signed the agreement because, West said, the opposition group didn’t want to fight any longer.
“They didn’t have the funds to do it,” West said.
According to the group’s attorney, Ted Bendelow, he too, disagreed with the complaint saying that he would contend that West and Jennett didn’t need to register.
The opposition’s lawsuit, which they agreed to drop, claimed that the Town of Berthoud had exceeded its jurisdiction, abused its discretion and is hindered from denying the sufficiency of the petition.
Opposition submitted the initial petitions to repeal the annexation in February, but that petition was deemed insufficient by Town Clerk Mary Cowdin after all 314 signatures were found to not include all pertinent information required by state statute; specifically many of the signatures didn’t include a town of residence and none of them included Larimer County.
Opposition then circulated a second referendum petition, again gathering over 300 signatures, which was rejected again by Cowdin because, according to municipal election code, the time frame to petition the annexation had already lapsed.
“Plaintiffs do not challenge a statute, but rather the lack of one,” the complaint reads, “The lack of an opportunity to correct insufficiencies and the requirement that they be specifically identified.”
The argument was that there was a lack of due process and equal protection afforded to municipal petitioners, according to the complaint, because there is a statutory requirement allowing 15 days to rectify insufficiencies with the petition on statewide ballot measures, but nothing specifically regarding municipal ballot issues.
“To deny municipal electors the same protections as statewide electors is violative [sic] of constitutional protection, and is a denial of due process and equal protections, as is protected by Colorado Constitution,” the complaint reads.
The Heron Pointe development’s concept plan and annexation was approved by the Berthoud Trustees in January and includes approximately 80 acres of single-family residential, multifamily residential, and a commercial component as well. The property straddles County Road (CR) 17, south of CR 14.
Attempts to reach Pierson were unsuccessful as of Wednesday. As well, phone calls seeking comment to developer Bob Dehn were not returned.
Gessler confirmed Wednesday morning that the complaint had been dropped and said that Pierson’s involvement in the construction industry in general was his only interest in filing the suit.
The Heron Pointe property officially became a part of the Town of Berthoud after the Planning Department recorded the annexation plat, zoning map and associated ordinances for annexation the week of April 1.
Dehn has said previously that he intends to continue to work with nearby residents and to build a professional development that is satisfactory to all sides.
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