Winter Park Town Council Lawsuit Against Grand County Board of Commissioners Seeking To Overturn County Approval of Serene Wellness Marijuana Dispensary

DISTRICT COURT, GRAND COUNTY, COLORADO
P.O. Box 192, 307 Moffat Avenue

Hot Sulphur Springs, CO 80451
Phone: (970) 725-3357
Plaintiff:
TOWN OF WINTER PARK, a Colorado home rule
municipal corporation; JIMMY LAHRMAN, an individual;
BARBARA ATWATER, an individual; CHUCK BANKS,
an individual; NICK KUTRUMBOS, an individual; JIM
MYERS, an individual; MIKE PERIOLAT, an individual;
and CHRIS SEEMANN, an individual;
v.
Defendant:
THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF
GRAND, COLORADO.
COURT USE ONLY
Attorneys for Town of Winter Park

Attorney:
Kendra L. Carberry, No. 25457
Firm:
Hoffmann, Parker, Wilson & Carberry, P.C.
Address:
511 16th Street, Suite 610
Denver, CO 80202
Phone No.:
(303) 825-6444
Fax No.:
(303) 825-1269
E-mail:
[email protected]
Case No.: 2016cv030062

Division: 1
FIRST AMENDED VERIFIED COMPLAINT

Plaintiffs the Town of Winter Park, Colorado (the "Town") and Jimmy Lahrman, Barbara
Atwater, Chuck Banks, Nick Kutrumbos, Jim Myers, Mike Periolat and Chris Seemann
(collectively, the "Town Councilmembers") by and through their undersigned counsel,
Hoffmann, Parker, Wilson & Carberry, P.C., as their Complaint against Defendant, state and
allege as follows:
PARTIES, JURISDICTION AND VENUE
1.
The Town is a home rule municipal corporation located in Grand County, Colorado. The
Town Council of the Town of Winter Park (the "Town Council") is the Town's governing body.
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2.
Each of the Town Councilmembers is an elected official of the Town, and a member of
the Town Council, and each of the Town Councilmembers resides within the municipal
boundaries of the Town.
3.
Defendant Board of County Commissioners of the County of Grand, Colorado (the
"BoCC") is the governing body of Grand County, Colorado (the "County").
4.
Jurisdiction is proper in this court pursuant to C.R.S. 13-1-124 (1)(a), because the
County, through its BoCC, transacted business in the state of Colorado including holding a
hearing of the BoCC at the Grand County Administration Building, Commissioners Meeting
Room, 308 Byers, Hot Sulphur Springs, Colorado.
5.
Venue is proper in this court pursuant to C.R.C.P. 98(b)(2), because the action is against
the public officers of County for acts done by them by virtue of their office, and under C.R.C.P.
98(c), because Defendant resides in Grand County, Colorado.
GENERAL ALLEGATIONS
6.
Plaintiffs repeat and re-allege the allegations set forth in each of the previous paragraphs
as though each were set forth fully herein.
7.
The County has adopted Resolution No. 2014-1-26 and Ordinance #14, A Resolution By
the Board of County Commissioners of the County of Grand, State of Colorado Approving and
Adopting Grand County Marijuana Licensing Ordinance, Effective February 1, 2014, and ReApproving and Re-Adopting the Grand County Marijuana Licensing Regulation (collectively,
the "Licensing Ordinance").
8.
The Licensing Ordinance provides as follows: "The Board of County Commissioners
shall conduct all hearings as may be required by this regulation and ordinance. Any person shall
have an opportunity to file with the Clerk and Recorder written objections/support or appear in
person at such hearings to submit such objection/support." Licensing Ordinance, 4(b)
(emphasis added).
9.
The Licensing Ordinance further provides: "Upon receipt of a complete application for a
marijuana establishment, the Clerk and Recorder shall schedule a public hearing before the
Board of County Commissioners not less than thirty days from the date of the application and
shall post and publish the public notice thereof not less than ten days prior to such hearing.
Public notice shall be given by posting of a sign in a conspicuous place on the premises for
which application has been made and by publication in a newspaper of general circulation."
Licensing Ordinance, 7(a)
10.
The Licensing Ordinance further provides: "At the public hearing held pursuant to this
section, any party in interest shall be allowed to present evidence and to cross examine
witnesses. As used in this section, 'party in interest' means any of the following: the applicant;
an adult resident of the neighborhood under consideration; the owner or manager of a business
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located in the neighborhood under consideration; an authorized representative of a registered

neighborhood organization that encompasses all or part of the neighborhood under consideration;
or the Board of County Commissioners." Licensing Ordinance, 8(a).
11.
The License Ordinance further provides:
"As used in this section, the term
"neighborhood" shall have the meaning as the Board of County Commissioners utilizes for
purposes of issuance of liquor licenses." Licensing Ordinance 8(b).
12.
The Licensing Ordinance further provides: "Before entering any decision approving or
denying the application, the Board of County Commissioners shall consider, except where this
regulation and ordinance specifically provides otherwise, the facts and evidence adduced as a
result of a public hearing required by this section, and any other pertinent matters affecting the
qualifications of the applicant for the conduct of business as a marijuana establishment."
Licensing Ordinance 8(d).
13.
The Licensing Ordinance further provides: "The Board of County Commissioners shall
also consider: the reasonable requirements of the neighborhood and the desires of the adult
inhabitants as evidenced by petitions, remonstrance, or otherwise; and the number and
availability of other marijuana establishments in or near the neighborhood under consideration;
and whether the issuance of such license would result in or add to an undue concentration of
marijuana establishment and, as a result, require the use of additional law enforcement
resources." Licensing Ordinance 8(e).
14.
Serene Wellness V LLC d/b/a Serene Wellness Winter Park, LLC, a Colorado limited
liability company ("Serene"), filed an application for a Retail Marijuana License (the
"Application") to operate a retail marijuana store at 79025 US Highway 40, Units 5&6, Grand
County, Colorado (the "Facility").
15.
Information concerning the Application was posted on the County's website and includes
a Map of the Neighborhood (2-mile radius). See Exhibit A, attached hereto and incorporated
herein by this reference. Further, a list of property owners within the 2-mile radius was posted
on the County's website in connection with the application. See Exhibit B, attached hereto and
incorporated herein by this reference.
16.
The proposed location for the Facility is approximately 0.2 miles from the Winter Park
Town Hall.
17.
Each of the Town Councilmembers other than Chuck Banks resides within the 2-mile
radius of the Facility as posted on the County's website.
18.
The link on the Grand County website for the Facility included the following language
"If you are interested in submitting comments regarding this license, you may come to the Public
Hearing"
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19.
The public hearing on the Application commenced on August 9, 2016 at approximately
1:30 p.m. at the Grand County Administrative Building (the "Public Hearing"). At the public
hearing, the BoCC arbitrarily limited each speaker to two minutes, regardless of whether the
speaker qualified as a "party in interest" under the Licensing Ordinance.
20.
Upon information and belief, at the Public Hearing, the Town Councilmembers present at
the Public Hearing were told by at least one member of the BoCC that any testimony or evidence
presented by any of the Town's representatives could not be considered, because the Town was
not a "party in interest." The BoCC provided no legal basis for this ruling.
21.
Upon information and belief, at the Public Hearing, several Town Councilmembers were
instructed that they could not participate at the Public Hearing as a "party in interest." The
BoCC provided no legal basis for this ruling.
22.
At the Public Hearing, Town Councilmembers were arbitrarily limited to two minutes of
testimony, despite their "party in interest" status. More importantly, no Town Councilmember or
other representative of the Town was provided an opportunity at the Public Hearing to crossexamine the applicant's witnesses.
23.
The BoCC's failure to allow the Town, through its authorized representatives, to
meaningfully participate in the Public Hearing or to cross-examine the applicant's witnesses
violated the Licensing Ordinance.
24.
The BoCC's failure to allow the Town Councilmembers to meaningfully participate in the
Public Hearing or to cross-examine the applicant's witnesses, either in their individual capacities
or as representatives of the Town, violated the Licensing Ordinance.
25.
The BoCC's failure to allow the Town, through its authorized representatives, to
meaningfully participate in the Public Hearing or cross-examine the applicant's witnesses in
accordance with the Licensing Ordinance was an abuse of discretion.
26.
The BoCC's failure to allow the Town Councilmembers to meaningfully participate in the
Public Hearing or cross-examine the applicant's witnesses in accordance with the Licensing
Ordinance was an abuse of discretion.
27.
The BoCC's failure to state any appropriate basis for their refusal to allow Plaintiffs to
meaningfully participate in the Public Hearing or cross-examine the applicant's witnesses was
arbitrary and capricious.
28.
Because the BoCC refused to allow Plaintiffs to meaningfully participate at the Public
Hearing or cross-examine the applicant's witnesses, any decision on the Serene Application will
be improper and invalid.
FIRST CLAIM FOR RELIEF
(Procedural Due Process)
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29.
30.
The BoCC's failure to comply with the Licensing Ordinance constitutes a violation of the
Town's procedural due process rights.
31.
The BoCC's failure to comply with the Licensing Ordinance constitutes a violation of
each of the Town Councilmembers' due process rights.
32.
The BoCC should be precluded from making any decision on the Serene Application
until such time as Plaintiffs have been allowed to meaningfully participate and present evidence
at a public hearing on the matter.
SECOND CLAIM FOR RELIEF
(Declaratory Relief, C.R.S. 13-51-101, et seq., and C.R.C.P. 57)
33.
34.
Plaintiffs are interested parties and have enforceable rights under the Licensing
Ordinance.
35.
Plaintiffs seek declaratory relief, pursuant to C.R.S. 13-51-101, et seq., and C.R.C.P. 57
that Plaintiffs are entitled to present evidence and meaningfully participate at a public hearing on
the Application, including the right to cross-examine the applicant's witnesses, prior to the BoCC
taking formal action thereon pursuant to the Licensing Ordinance.
36.
In requesting this declaratory relief, Plaintiffs are requesting an interpretation of rights,
legal status and relations of the parties under the above law and facts.
37.
Plaintiffs are entitled to a determination that continuation of the Public Hearing without
participation by Plaintiffs would cause Plaintiffs irreparable harm.
THIRD CLAIM FOR RELIEF
(Injunctive Relief)
38.
39.
Plaintiffs will suffer immediate and irreparable injury, loss, and damage if the BoCC is
allowed to continue the Public Hearing without allowing Plaintiffs to participate and present
evidence, or if the BoCC issues the retail marijuana store license after denying Plaintiffs' the
opportunity to cross-examine witnesses.
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40.
An injunction is necessary to preserve the status quo and to prevent injury or damage to
Plaintiffs pending a trial on the merits.
41.
Plaintiffs have a reasonable probability of success on the merits.
42.
Plaintiffs are entitled to injunctive relief, including without limitation a temporary
restraining order, preliminary injunction, and/or permanent injunction prohibiting the BoCC
from taking any further action on the Application or issuing the retail marijuana store license
until such time as the BoCC has allowed Plaintiffs to meaningfully participate in the Public
Hearing, including the right to cross-examine the applicant's witnesses.
WHEREFORE, Plaintiffs respectfully requests the Court enter judgment in their favor
and against Defendant, as indicated above, and for such other and further relief as the court
deems just and proper.
Dated this 19th day of August, 2016.
HOFFMANN, PARKER, WILSON &
CARBERRY, P.C.
By:
/s/ Kendra L. Carberry

ATTORNEYS FOR PLAINTIFFS
Plaintiffs' Addresses:
Town of Winter Park:
Town of Winter Park
P.O. Box 3327
Winter Park, CO 80482
Jim Myers
P.O. Box 1267
10 Alpine Lane
Jimmy Lahrman
P.O. Box 249
655 Forest Trail
Mike Periolat
P.O. Box 344
405 Kings Crossing Road
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Chuck Banks
P.O. Box 1433
1040 Arrow Trail
Chris Seemann
P.O. Box 3354
120 Moose Court
Nick Kutrumbos
P.O. Box 312
78 Timber Drive
Barbara Atwater
P.O. Box 3317
335 Vasquez Road Unit 1
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VERIFICATION
I, Drew Nelson, Town Manager of the Town of Winter Park, Colorado, being of lawful
age and first duly sworn, do swear under oath that I have reviewed the foregoing FIRST
AMENDED VERIFIED COMPLAINT and that, to the best of my knowledge and belief, the
same are true, complete and accurate as of todays date.
DATED: August 19, 2016
____________________________________
Drew Nelson, Town Manager
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Winter Park Town Council Lawsuit Against Grand County Board of Commissioners Seeking To Overturn County Approval of Serene Wellness Marijuana Dispensary

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Winter Park Town Council Lawsuit Against Grand County Board of Commissioners Seeking To Overturn County Approval of Serene Wellness Marijuana Dispensary

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DISTRICT COURT, GRAND COUNTY, COLORADO

P.O. Box 192, 307 Moffat Avenue

COURT USE ONLY

Attorneys for Town of Winter Park

Case No.: 2016cv030062

FIRST AMENDED VERIFIED COMPLAINT

located in the neighborhood under consideration; an authorized representative of a registered

Plaintiffs have a reasonable probability of success on the merits.

/s/ Kendra L. Carberry

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