Northeast Colorado Springs Neighborhood Association

May 00 - Lawsuit Chronology/Status

May 14, 2000

As of May 14th-- The following is a chronology of the key dates and specifics on the Brisben apartment development. Please read this for the latest status!

19 Jun 98 Brisben formally submits plans to build 160 apartment units in 9 buildings on the SE corner of Austin Bluffs and Research.

23 Sep 98 Special session of City Planning Commission (CPC). City Planning staff recommends denial of development plan. Brisben's attorney withdraws development plan from agenda.

2 Nov 98 Brisben submits revised plans. Plans are result of "bilateral" negotiations between City and Brisben. NECSNA/neighbors were excluded from all of these discussions. 144 units, 8 buildings.

7 Dec 98 City sponsors mediations and hires a private mediator. After 10 hour session, no agreement is reached. All parties do not agree on proposed mediation agreement.

17 Dec 98 Brisben submits revised drawings. Brisben makes some of the proposed changes as described in the last draft of the unexecuted proposal.

7 Jan 99 Development plan approved by CPC after 6+ hours of debate.

26 Jan 99 City Council (CC) hears appeal by neighbors on Brisben development. CC unanimously decides that plan does not meet minimal City Zoning Code and sends the plans back to CPC/Planning Staff to make major improvements.

Early Feb Brisben declares they will not make any changes to plans. They demand a "yes or no" decision from the City. Identical plans are placed on CPC agenda.

4 Mar 99 CPC review identical plans during hearing. CPC approves the plans with a split decision.

27 Apr 99 CC hears appeal by neighbors. CC rules with a 5-3 vote that the plans do not meet the minimal requirements of the City Zoning Code (incompatible, unharmonious, excessive bulk and scale, lack of privacy, etc). The development is officially denied. Officially, they cannot resubmit to the City without significant revisions/improvements.

25 May 99 Brisben files suit against the City of Colorado Springs for $16,383,000. They claim that CC abused their authority with "arbitrary and capricious" decision. Quoted "in so denying the development plan, the City Council exceeded its jurisdiction and abused its discretion, and violated Brisben's federal and state constitutional rights." Many other claims were stated.

14 Jul 99 Brisben sues Eric Krystkowiak for $16M. Brisben sues NECSNA for $16M. Brisben claims the existence of a binding contract with NECSNA and accused Krystkowiak of "intentional interference with contractual relations."

Early Aug 99 Larry Hecox and Lenard Rioth of Anderson, Dude and Lebel are selected as counsel for Eric Krystkowiak and NECSNA.

19 Aug 99 NECSNA responds to all the claims against the association. Response asked court to dismiss the complaint and award attorney fees.

19 Aug to present Stacks of legal documents have been exchanged between the attorneys for Krystkowiak and Brisben. Krystkowiak's counsel motioned to dismiss the case and award attorney fees as it was a violation of his First Amendment rights and his rights as a non-paid volunteer for a incorporated non-profit corporation (NECSNA).

27 Sep 99 Judge Pelican denied motion to dismiss for Krystkowiak. He ruled that there are issues of fact that must be determined by factfinder.

1 Oct 99 Krystkowiak's counsel files motion to reconsider and submits case law & legal books on SLAPP suits (Strategic Lawsuits Against Public Parties).

3 Nov 99 Judge Pelican partially rescinded denial of motion to dismiss. Court restructured motion into a motion for summary judgment. The judge ruled that Brisben has 30 days to prove "improper" conduct on the part of Krystkowiak. In the order---
"The plaintiff must make a sufficient showing to permit the court to reasonably conclude that the defendant's petitioning activities were not immunized from liability under the First Amendment because-
(1) the defendant's administrative or judicial claims were devoid of reasonable factual support, or, if so supportable, lacked any cognizable basis in law for their assertion; and
(2) the primary purpose of the defendant's petitioning activity was to harass the plaintiff or to effectuate some other improper objective; and
(3) the defendant's petitioning activity had the capacity to adversely affect a legal interest of the plaintiff"

For all of you who were involved and heard Eric Krystkowiak speak at the CPC and CC hearings, it would be absurd to try to prove his actions were improper by these or any criteria.
8 Dec 99 Judge allows Brisben's attorneys indefinite period of time to gather facts on Krystkowiak's "intent." This is a devestating ruling since it requires depositions and costly fact finding. Judge ignored his own 30 day time limit. Judge ruled Brisben needed fact finding in order to prove criteria 2 and 3 above.

Jan 00 - Colorado Supreme Court rules to not hear our case at this time. We were appealing the judge's actions.

Mar 00 - Depositions were completed.

Apr 00 - Brisben attorneys file their brief to the court. They did not attempt to prove the criteria mandated by judge but continued to argue contract interference. Spillane (their attorney) used affidavits from Brisben's former attorneys (Braden and Jolivet) improperly.

Apr 00 - Our attorneys motioned to allow us to examine their former attorneys and Brisben reps with depositions.

May 00 - Judge ruled that we can depose former attorneys and Brisben reps. We have asked for all paperwork and documentation on their handling of mediations, proposed agreement, etc. This was good news!