DISTRICT COURT, BOULDER COUNTY, COLORADO

1777 6th Street, P.O. Box 4249, Boulder, CO 80302

Plaintiffs: ROBERT LINDOW, SINDY LINDOW, ROBERT
JENSEN, TRACI JENSEN, BRETT FORMAN, AMBER
SHELLY, KENDRA L. CARBERRY and CHRISTOPHER A.
DAVIDSON, individuals.

v. ▲ COURT USE ONLY ▲

Defendant: BOARD OF COMMISSIONERS FOR THE
COUNTY OF BOULDER, COLORADO.
Attorney for Plaintiffs Case No.:
Murray I. Weiner, Bar No. 14352
MULLIKEN WEINER BERG & JOLIVET P.C. Division:
Alamo Corporate Center
102 South Tejon Street, Suite 900
Colorado Springs, CO 80903
Phone No.: (719) 635-8750
Fax No.: (719) 635-8706
E-mail:weiner@mullikenlaw.com

COMPLAINT

Plaintiffs, by and through their undersigned counsel, as their Complaint against Defendant,
state and allege as follows:

PARTIES, JURISDICTION AND VENUE

1. Plaintiffs Robert and Sindy Lindow own the real property located at 11995 Kenosha Road,
Erie, Colorado (the "Lindow Property").

2. Plaintiffs Traci and Robert Jensen own the real property located at 11964 Kenosha Road,
Erie, Colorado (the "Jensen Property").

3. Plaintiffs Amber Shelly and Brett Forman own the real property located at 11724 Kenosha
Road, Longmont, Colorado (the "Forman Property").

4. Plaintiffs Kendra L. Carberry and Christopher A. Davidson own the real property located
at 11780 Kenosha Road, Longmont, Colorado (the "Davidson Property").

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5. Defendant the Board of Commissioners for the County of Boulder, Colorado (the "BOCC")
acts as the governing body of Boulder County, a Colorado county established under the laws of
the State of Colorado (the "County").

6. Venue is proper in this court pursuant to C.R.C.P. 98(c), because the Lindow Property, the
Jensen Property, the Forman Property and the Davidson Property (collectively, the "Affected
Properties") are all located in Boulder County, Colorado.

GENERAL ALLEGATIONS

7. Plaintiffs repeat and re-allege the allegations set forth in each of the previous paragraphs
as though they were set forth fully herein.

8. At a public hearing on July 24, 2018 (the "Hearing"), the BOCC voted 2-0 to approve
Docket Z-17-0002, which downzoned the Affected Properties from 100-year floodplain to
regulatory floodway.

9. Plaintiffs received no notice of the hearing regarding the proposed downzoning of the
Affected Properties. Plaintiffs only heard about the Hearing because the Lindow Property was the
subject of a building permit application that was improperly denied by the County several days
prior to the Hearing.

10. The postcard notices of the Hearing allegedly mailed by the County, even if actually mailed
to Plaintiffs, were ambiguous and misleading, and inadequate to describe the purpose of the
hearing.

11. Immediately upon learning of the Hearing, Plaintiff Carberry filed a written request for a
continuance of the Hearing, so that Plaintiffs could have more time to prepare. Neither the BOCC
or anyone else at the County responded to Plaintiff's request, and the Hearing proceeded over
Plaintiffs' objections.

12. At the Hearing, Plaintiffs were provided with only three minutes each to comment on the
proposed downzoning of the Affected Properties.

13. At the Hearing, Plaintiff Carberry repeated her request for a continuance, so that Plaintiffs
could adequately prepare for the hearing, but the BOCC denied Plaintiff's renewed request for a
continuance.

14. Varda Blum ("Blum") is the Floodplain Program Manager for the County. At the Hearing,
Blum testified that the BOCC had no choice but to approve the downzoning of the Affected
Properties, because the floodway mapping had already been approved by the Colorado Water
Conservation Board (the "CWCB"). Blum had actual knowledge that her testimony was untrue,
because the CWCB had already postponed consideration of the floodway mapping for the Lower
Boulder Creek area until its September 18, 2018 meeting.

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15. Erin S. Cooper ("Cooper") is a Floodplain Specialist for the County. At the Hearing,
Cooper testified that no community meeting was held regarding the proposed floodway mapping
for the Lower Boulder Creek area, because the County lacked resources for such a meeting.

16. As of the date of this Complaint, the CWCB had still not adopted the proposed floodway
mapping for the Lower Boulder Creek area, despite Blum's testimony to the contrary at the
Hearing. Pursuant to C.R.S. § 24-65.1-403(3)(b): "No floodplains shall be designated by any
local government until such designation has been first approved by the Colorado water
conservation board as provided in sections 30-28-111 and 31-23-301."

17. The downzoning of the Affected Properties purportedly does not take effect until October
1, 2018, but immediately following the Hearing, Blum represented to Plaintiffs that the
downzoning would be applied immediately to prohibit any activity on the Affected Properties,
despite the later effective date.

18. The designation of the Affected Properties as floodway subjects the Affected Properties to
severe regulation by the BOCC and the County, rendering the Affected Properties unusable and
unmarketable.

19. Competent evidence was presented at the Hearing that the technology employed to
determine the boundaries of the floodway in the Lower Boulder Creek area was new, untested and
unreliable.

20. At the Hearing, no evidence was presented by Blum, Cooper or anyone else representing
the County to demonstrate the validity or reliability of the technology used to determine the
boundaries of the floodway in the Lower Boulder Creek area.

21. At the Hearing, the BOCC failed to consider the applicable review criteria contained in
Article 4-1102 of the Boulder County Land Use Code.

22. No hydrologist, County representative, CWCB representative or any other person working
on the new floodway designation for the Lower Boulder Creek area ever contacted Plaintiffs in
writing, via electronic mail, by telephone or by any other means.

23. No hydrologist, County representative, CWCB representative or any other person working
on the new floodway designation for the Lower Boulder Creek area ever entered any of the
Affected Properties to obtain relevant data.

24. At the hearing, the BOCC failed to make any findings to support its downzoning of the
Affected Properties, and no vote was taken on Resolution 2018-78. At some point following the
Hearing and apparently without a vote, the BOCC adopted and signed Resolution 2018-78, which
contains findings that were not made at the Hearing.

25. Resolution 2018-78 contains no map of the areas affected by Resolution 2018-78, instead
referring to a digital map.

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26. Pursuant to C.R.S. § 30-28-116, notice of the proposed approval of Resolution 2018-78
should have been published in a newspaper of general circulation in the County no less than 14
days prior to the Hearing.

27. Pursuant to C.R.S. § 24-65.1-404(2)(a), notice of the proposed approval of Resolution

2018-78 should have been published in a newspaper of general circulation in the County no less
than 30 days and no more than 60 days prior to the Hearing.

28. At the Hearing, no evidence was presented that the public notice required by C.R.S. § 30-
28-116 or C.R.S. § 24-65.1-404(2)(a) was properly made.

29. The real property located at 5075 North 119th Street, Erie, Colorado (the "Anderson
Property") contains a packing house.

30. The Anderson Property is located within one mile of the corporate boundaries of the Town
of Erie, Colorado, an incorporated municipality.

31. The Anderson Property is affected by the adoption of Resolution 2018-78, because the
Anderson Property was also downzoned from 100-year floodplain to regulatory floodway.

32. Pursuant to C.R.S. § 30-28-138, the BOCC "shall refer any proposed land use decision that
involves a business or agricultural activity identified in section 31-15-501(1)(a) or (1)(d), C.R.S.,
to the governing body of a municipality for review and comment if such business or agricultural
activity lies wholly or partially within one mile of the corporate limits of the municipality."

33. Based upon information and belief, neither the BOCC or anyone else at the County referred
the downzoning of the Anderson Property to the Town of Erie, as required by C.R.S. § 30-28-138,
prior to the Hearing.

FIRST CLAIM FOR RELIEF

(Procedural Due Process)

34. Plaintiffs repeat and re-allege the allegations set forth in each of the previous paragraphs
as though set forth fully herein.

35. Because Plaintiffs' property rights in the Affected Properties were adversely affected by
the BOCC's decision at the Hearing and the adoption of Resolution 2018-78, Plaintiffs were
entitled to adequate notice of the hearing and a fair opportunity to be heard at the hearing.

36. Plaintiffs did not receive adequate notice of the Hearing.

37. The BOCC's failure to provide notice of the Hearing to Plaintiffs violated Plaintiffs' due
process rights.

38. The BOCC's refusal to continue the Hearing over Plaintiffs' repeated objections violated
Plaintiffs' due process rights.
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39. The BOCC's refusal to allow Plaintiffs more time to comment at the Hearing violated
Plaintiffs' due process rights.

40. Defendant Blum's intentional and knowing misrepresentation to the BOCC at the Hearing
violated Plaintiffs' due process rights.

41. Cooper's failure to schedule a community meeting for the Lower Boulder Creek area
floodway designation due to an alleged "lack of resources", when community meetings were held
in every other area in the County being remapped, violated Plaintiffs' due process rights.

42. Blum's enforcement of the downzoning of the Affected Properties prior to the effective
date of Resolution 2018-78 violates Plaintiffs' due process rights.

43. The BOCC's violation of Plaintiffs' procedural due process rights caused Plaintiffs
damages in an amount to be proved at trial.

SECOND CLAIM FOR RELIEF

(Judicial Review Pursuant to C.R.C.P. 106(a)(4))

44. Plaintiffs repeat and re-allege the allegations set forth in each of the previous paragraphs
as though set forth fully herein.

45. The BOCC exercised quasi-judicial functions in downzoning the Affected Properties at the
Hearing.

46. Because Plaintiffs were not provided with sufficient notice of the Hearing, and because the
BOCC was presented with no evidence that the notice required by C.R.S. § 30-28-116 or C.R.S. §
24-65.1-404(2)(a) was made, the BOCC's decision to hold the hearing on July 24, 2018 was
arbitrary and capricious and an abuse of discretion.

47. Because there was no competent evidence in the record to support the BOCC's finding that
the Affected Properties should be downzoned from floodplain to floodway, the BOCC's decision
to downzone the Affected Properties and adoption of Resolution 2018-78 was clearly erroneous.

48. Because Blum misrepresented the CWCB's adoption of the Lower Boulder Creek area
floodway designation, the BOCC's decision to downzone the Affected Properties and adopt
Resolution 2018-78 was not based on competent evidence in the record.

49. The BOCC's failure to comply with C.R.S. § 30-28-138 prohibited the BOCC from
considering Docket Z-17-0002 in the first instance.

50. The BOCC's failure to consider all applicable criteria contained in Article 4-1102 of the
Boulder County Land Use Code was an abuse of discretion.

51. The BOCC's failure to take a public vote on Resolution 2018-78 at the Hearing renders that
Resolution void and of no force and effect.
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52. The BOCC's adoption of Resolution 2018-28 prior to the CWCB's approval of the
floodway mapping for the Lower Boulder Creek area violates C.R.S. § 24-65.1-403(3)(b).

53. Based on the foregoing, the BOCC exceeded its jurisdiction and abused its discretion when
it voted to approve Docket Z-17-0002, and again when the BOCC purported to adopt Resolution
2018-78 without a public vote.

54. There is no other plain, speedy, and adequate remedy otherwise provided to Plaintiffs by
law.

55. Pursuant to C.R.C.P. 106(a)(4), Plaintiffs are entitled to a ruling of this Court that the
BOCC exceeded its jurisdiction and abused its discretion, and vacating and reversing the
downzoning of the Affected Properties, the approval of Docket Z-17-0002 and the adoption of
Resolution 2018-78.

THIRD CLAIM FOR RELIEF

(Inverse Condemnation/Regulatory Taking)

56. Plaintiffs repeat and re-allege the allegations set forth in each of the previous paragraphs
as though set forth fully herein.

57. The BOCC holds the power of eminent domain.

58. The BOCC's downzoning of the Affected Properties substantially deprives Plaintiffs of the
use and enjoyment of the Affected Properties.

59. The BOCC's downzoning interferes with Plaintiffs' use and enjoyment of the Affected
Properties to such an extent that there is a permanent physical occupation of the Affected
Properties.

60. The BOCC failed to pay any compensation to any of the Plaintiffs for the downzoning of
the Affected Properties.

61. The action of the BOCC in downzoning the Affected Properties from floodplain to
floodway, without Plaintiffs' consent and without paying just compensation to Plaintiffs,
constitutes inverse condemnation and a regulatory taking of the Affected Properties.

62. The BOCC's inverse condemnation and regulatory taking of the Affected Properties
without paying just compensation caused Plaintiffs damages in an amount to be proved at trial,
and Plaintiffs are entitled to recover those damages from the BOCC.

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 FOURTH CLAIM FOR RELIEF
(Declaratory Judgment)

63. Pursuant to C.R.C.P. 57 and C.R.S. § 13-51-101, et seq., the Court has the power to declare
the rights, status and other legal relations of the parties to this case regarding the downzoning of
the Affected Properties.

64. A present, actual and justiciable controversy exists with respect to the parties' legal rights
and obligations regarding the actions of the BOCC as alleged herein.

65. Plaintiffs are aggrieved by the actions of the BOCC, and are entitled to seek a judicial
determination of their legal rights and obligations with regard to the actions of the BOCC as alleged
herein.

66. A declaration of Plaintiffs' legal rights and obligations with regard to the actions of the
BOCC as alleged herein would afford Plaintiffs relief from uncertainty giving rise to this
proceeding.

67. Because of the BOCC's violations of C.R.S. § 24-65.1-403(3)(B), C.R.S. § 30-28-116 and
C.R.S. § 30-28-138, the BOCC was without jurisdiction to approve Resolution 2018-78.

68. Plaintiffs are entitled to a declaratory judgment that the BOCC's approval of Docket Z-17-
0002 and adoption of Resolution 2018-78 were invalid, so the approval and adoption are of no
force and effect, and that the Affected Properties shall revert to their original zoning prior to the
approval of Docket Z-17-0002 and the adoption of Resolution 2018-78.

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor
and against the BOCC as follows:

1. For a determination that the BOCC exceeded its authority in approving Docket Z-
17-0002 and adopting Resolution 2018-78;

2. For a determination that the BOCC's approval of Docket Z-17-0002 and adoption
of Resolution 2018-78 was an abuse of discretion;

3. For an order reversing the decision of the BOCC to downzone the Affected
Properties;

4. For a determination that the BOCC violated Plaintiffs' due process rights;

5. For damages to compensate Plaintiffs for the BOCC's violation of Plaintiffs' due
process rights;

6. For a determination that the Affected Properties were inversely condemned by the
BOCC without just compensation;

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 7. For damages to compensate Plaintiffs for the inverse condemnation and regulatory
taking of the Affected Properties;

8. For a declaratory judgment that the approval of Docket Z-17-0002 was invalid and
is of no force and effect, and that the Affected Properties revert to their prior zoning as 100-year
floodplain;

9. For an immediate stay of any enforcement of Resolution 2018-78 or the

downzoning of the Affected Properties;

10. For costs and attorney fees; and

11. For such other and further relief as the Court deems just and proper.

JURY DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

DATED this 20th day of August, 2018.

Respectfully submitted,

MULLIKEN WEINER BERG & JOLIVET P.C.

[A duly signed original on file at office of undersigned.]

By: /s/ Murray I. Weiner

Murray I. Weiner, #14352

Plaintiffs' Addresses:

Brett Forman and Amber L. Shelly

11724 Kenosha Road
Longmont, CO 80504

Traci and Robert Jensen

11964 Kenosha Road
Erie, CO 80516

Robert and Sindy Lindow

11995 Kenosha Road
Erie, CO 80516

Kendra L. Carberry and Christopher A. Davidson

11780 Kenosha Road
Longmont, CO 80504