Court dismisses lawsuit against city over Wheat Ridge denial
A district court judge has dismissed the lawsuit filed against the city in 2019 over the denial of the Wheat Ridge annexation, finding in favor of the city.
In March of 2019, the City Commission denied annexation of 21.1 acres on the eastern edge of the city for the proposed Wheat Ridge residential subdivision.
The annexation request was initially submitted to the city in 2018 and had support from Neighborhood Council 5 and the city planning board.
But city staff has recommended denial based on concerns over public safety resources, stormwater management and compatibility with operations at Malmstrom Air Force Base, among others.
The property in question is owned by KYSO Corporation, which is Dan Huestis, and also owns about 227 acres near the east side Walmart and Malmstrom Air Force Base.
In the complaint, KYSO asked the court to deem the city’s actions as unconstitutional and in violation of KYSO’s private property rights and that KYSO be awarded compensation for the property.
The District Court Judge John Kutzman issued an order on Nov. 13 granting the city’s motion for summary judgment, denied KYSO’s cross-motion for summary judgment and vacated the jury trial previously set for Nov. 29.
In the lawsuit, KYSO alleges that the city’s basis for denial was tied to the conflict with the Joint Land Use Study that looked at land development issues as they related to Malmstrom.
The commission found that KYSO’s application conflicted with its support of the JLUS, according to the lawsuit, and “the commission also found that KYSO’s application for annexation conflicted with the city’s desire to be well positioned if Congress passed future legislation to change Malmstrom Air Force Base’s mission.”
KYSO alleges that the city is violating its property rights by taking private property for public use to protect the potential for future military missions.
In the complaint, KYSO’s attorney wrote that the company and the Wheat Ridge developers first submitted their notice of intent to seek annexation for the property in 2006. In 2008, a bond request was on the ballot as to whether purchase the land to protect the base from encroachment. The ballot asked voters to approve a $3.265 million bond, but the measure failed.
KYSO’s lawsuit argues that since the government is preventing it from annexing and developing, the property owner should be compensated.
According to court documents, Huestis purchased the property for $1 in 1979 from a corporation owned by himself and his brother. The property has never been used for anything other than farmland, according to the documents.
In the order, Kutzman wrote that when Huestis bought the property it was farmland and Malmstrom still had a flying mission.
“The record contains no evidence establishing that he bought the property in 1979 because he foresaw that the flight mission at Malmstrom would end. KYSO has not shown that in 1979 Mr. Huestis was in any way relying on one day being free to subdivide this historically agricultural property into residential lots. KYSO does not even hint at this in its briefing. The city has done nothing to keep the owner from continuing to use the property the way it had been used it when he bought it. JLUS or no JLUS, nothing about the city’s refusal to annex the property has deprived KYSO of the
right to continue to use it as farmland. The summary judgment record simply does not support Mr. Huestis having had
reasonable investment expectations in 1979 about future uses of the property that have now been impeded by the city’s unwillingness to annex it,” Kutzman wrote. “KYSO has offered no logically coherent explanation of how the city’s
unwillingness to bring the property within the city’s regulatory jurisdiction is the same as somehow imposing a ‘servitude’ on it.”
According to state law, annexation is discretionary for local governments.
Much discussion in the public meetings on the annexation request centered around Malmstrom, but was just one of city staff’s reasons for recommending denial.
Staff discussed concerns about the strain continued development was putting on public safety resources and in the case of Wheat Ridge, storm water was a major concern.
The city is currently involved in litigation and defending itself against claims of more than $2 million in damages from L. Johnson Corporation in the Gibson Flats area. The lawsuit was filed in 2015 and was referenced in staff reports and presentations during the public meetings on the Wheat Ridge proposal and included in The Electric’s stories on the proposal. The claims are due to alleged damage to the corporation’s property from drainage issues from prior developments in the area within the city limits.
That case has been set for a jury trial in May 2022.
In the spring of 2019, when the Wheat Ridge project was being considered, Gibson Flats flooded again and several residents claimed that the city’s stormwater system is to blame.
City staff also raised concerns over public safety resources and emergency response times. In recent years, fire and police officials have become more vocal about their concern about continued city growth without additional staffing, equipment or resources to provide the level of service they believe residents expect.