Northeast Colorado Springs Neighborhood Association

Lawsuit Status/Background

May 14, 2000

From Eric Krystkowiak
I would like to take this opportunity to update you on some troubling legal issues in our community and to solicit your help in upholding our strong public voice in the Colorado Springs community. As many of you know, the City of Colorado Springs, the Northeast Colorado Springs Neighborhood Association and I personally were sued by W. O. Brisben Companies over the rejection of their plan to build a huge, incompatible apartment complex in Briargate. This wanton disregard for the judicial process and our First Amendment rights threatens the very core of our fundamental right to speak in public and petition for redress. Although this classic "SLAPP" suit (strategic litigation against public participation) against me for an astounding $16M appears to be completely groundless and ludicrous, the judge recently ruled against our motion to dismiss the case.

The Development - W.O. Brisben Co of Cincinnati, Ohio hired local firms J.R Engineering and NES to propose a massive, 160-unit apartment complex at the SE corner of Research and Austin Bluffs in Briargate. The 8-acre piece of land is owned by the State Land Board and was zoned in 1986 as "Urban/25 units per acre/42ft max height." The plan, utilizing federal tax credits and Colorado housing credits, was first submitted to the City in June 1998.
After the plan was rejected by CPC in Sep 98, the City and developer entered "bilateral negotiations" to "isolate the City's concerns." We were outraged since the product of these "negotiations" was a plan with minor revisions that potentially "minimally met City requirements" according to the City Planning Dept. At that point, the City hired a mediator. We were in the arduous position of trying to improve the design while the developer sat back with an "acceptable" plan. We were presented with an "agreement" that eliminated a building, closed a needless access into the neighborhood, and required that the PUD plan meet City Zoning Codes. Three mandatory signature blocks were put on the document-our attorney at the time, the then NECSNA president, and mine. In the furry of faxes and messages, they left the final decision to me. Upon reviewing the final proposal and conferencing with CONO, I informed the mediator and City that we did not have an agreement-I never signed it!
The developer proceeded to submit revisions per the unexecuted proposal. Ultimately, the development plan was denied by CC with a 5-3 vote on 27 Apr 99. The bottom line was that City Council decided that the PUD did not meet minimum City Zoning Codes.

The Legal Battle-- The City was promptly sued by Brisben in May for their "arbitrary and capricious" decision and abuse of authority. As you may expect, the City indicated they would be open to modifying the development plan to meet City Code?…with neighborhood involvement. What better way to silence the public voice than to tie up the association and the main advocate (me) with a SLAPP suit for $16M! Brisben's main contention is that a binding contract was executed by all sides (developer, City, NECSNA, and even me) and that the association violated the contract by opposing the development at CPC and CC. They sued me for "intentionally interfering with contractual agreements."
We hired Larry Hecox and Leonard Rioth of Anderson, Dude & Lebel to defend both the association and me. Although reams of paper have been expended on motions and responses, our defense is quite simple-
1) there was not an executed agreement (the City has signed affidavits to this effect), 2) we were exercising our First Amendment right by engaging in public speech before public bodies in public meetings on public matters, 3) any "contract" was void under Colorado Law since it specifically stated the PUD would be subject to all relevant City Codes which City Council deemed it did not meet. There is also case law from both the US and Colorado Supreme Courts that mandates that "SLAPP" suits like this are to be dismissed.
The judge on my case already ruled once to not dismiss the case in that "the immunity issues?…are affirmative defenses rather than jurisdictional bars" and that there are "issues of fact" that need to be "adjudicated at a later time?…before a fact finder." The judge reviewed our motion to reconsider along with case law, journals, and books on the subject of SLAPP suits that we furnished. Now the judge has given Brisben thirty days to prove "improper" actions to challenge our First Amendment rights. This is a positive step in the right direction.

The Impact-On the surface, this appears to be a case of an overly zealous out-of-state developer and his counsel trying to carry out a vendetta against NECSNA and me for standing up for our rights and thoughtfully convincing City Council to reject an incompatible hotel-sized development. Their goal is to cripple us with the crushing financial burden of lengthy litigation and to silence our voice in future development issues. On a deeper level however, the outcome of these cases extend to the very fabric of our constitutional rights and have wide reaching implications on our neighborhood activism. Will individuals and associations be held hostage by the threat of or actual litigation on everything from hospital expansions to residential planning? How many of you will be willing to speak to public bodies and/or attend City-sponsored mediation if you could be slapped with a time consuming, financially devastating lawsuit? The outcome of these cases directly impact all of us!
However unfair and ludicrous it may seem, these cases against NECSNA and me are likely to be in litigation for an extended period of time. The association has the option of dissolving since we are a non-profit corporation. I, however, have much more to lose like my life's savings and future income. Since my defense is most critical, the vast majority of the legal fees have been accrued in my name and thus I have ultimate responsibility for their payment. My wife and I are saddened that after the hundreds of hours I have personally spent on this development away from my family and the things that are important to me, that we could be financially ruined by it.

Please join and contribute to NECSNA to help stop this injustice and protect our strong voice in the community!