DISTRICT COURT, LARIMER COUNTY,

COLORADO

Larimer County Justice Center

201 La Porte Ave., Suite 100
Fort Collins, CO 80521

Plaintiffs:
McWHINNEY REAL ESTATE SERVICES, INC., a
Colorado corporation, CENTERRA SOUTH
DEVELOPMENT, INC., a Delaware corporation,
CENTERRA PROPERTIES WEST, LLC, a Colorado
limited liability company, and VDW PROPERTIES,
LLC, a Colorado limited liability company,

v.

Defendant:
CITY OF LOVELAND.
 COURT USE ONLY 
Attorneys for Plaintiffs: Case Number:
Name(s): Christopher O. Murray, #39340
Julian R. Ellis, Jr., #47571
Robert Bacaj, #52376 Div.:

Address: Brownstein Hyatt Farber Schreck, LLP

675 15th Street, Suite 2900
Denver, CO 80202

Phone Number: 303.223.1100

FAX Number: 303.223.1111
E-mail: cmurray@bhfs.com;
jellis@bhfs.com;
rbacaj@bhfs.com

FORTHWITH MOTION FOR TEMPORARY RESTRAINING

ORDER AND PRELIMINARY INJUNCTION

Pursuant to C.R.C.P. 65, Plaintiffs McWhinney Real Estate Services, Inc., Centerra South

Development, Inc., Centerra Properties West, LLC, and VDW Properties, LLC (collectively,
“Plaintiffs” or “McWhinney”), move for (1) a Temporary Restraining Order (“TRO”) and

Preliminary Injunction, and (2) an order directing Defendant to show cause why the Court should

not enter a declaratory judgment under the expedited procedure allowed by C.R.C.P. 57(m) that

the motions purporting to rescind the Centerra South Urban Renewal Plan and Master Finance

and Intergovernmental Agreement are void ab initio, stating:

INTRODUCTION

Urban renewal is necessarily a deliberate and contemplative effort. Establishing an urban

renewal authority, crafting an urban renewal plan, consulting with other local government

entities, acquiring the land, planning private development, ensuring adequate public

infrastructure, preparing a metropolitan district, arranging financing—the processes involved in

urban renewal require substantial resources and take years of planning and coordination among

public entities and developers before the first shovelful of earth can be moved.

Many of these processes are prescribed by law. As relevant here, the Urban Renewal Law

and Loveland’s City Charter mandate that the Loveland City Council hold a public hearing and

allow input from a broad swath of entities, including the public, when considering whether to

approve or substantially modify existing urban renewal plans. They also require 30 days’ notice

of the hearing and submitting any approved plans or modifications to a public vote. These

requirements are not mere red tape; they guard against hasty decisions creating long-term

consequences for thousands of Coloradans affected by them.

These processes are also important because the decision to approve an urban renewal

plan is final. While the Urban Renewal Law provides a process for modifying plans, it does not

permit a governing body to unilaterally rescind a previously approved plan. This is sound policy.

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If the City Council could unilaterally undo an existing plan, urban renewal plans would be

vulnerable every time the balance of political power shifted. There would be immense risk to any

prospective business partner.

In this case, the Loveland City Council purposefully disregarded the law by unilaterally

attempting to rescind a validly approved urban renewal plan. Not only that, it ignored the proper

public-notice and public-vote requirements in an exceedingly hasty attempt to jeopardize

development of a long-planned community. For the past 18 months, McWhinney has diligently

worked to begin development to transform approximately 140 acres of land near Highway 34

and I-25 into a pedestrian-focused community that combines parks and open space, a variety of

attainable housing options, retail offerings, a specialty and organic grocery, and jobs and office

space. This development, christened Centerra South, requires significant public improvements.

To assist with funding some of those public improvements, McWhinney worked with

representatives of the Loveland Urban Renewal Authority (“LURA”) and the City to provide

some public cost-sharing for about 15% of the overall cost of the Centerra South project. This

cost-sharing is addressed in the Centerra South Urban Renewal Plan (the “Plan”) and the Master

Finance and Intergovernmental Agreement (the “MFA”). Both the Plan and the MFA were

approved by the City Council after observing all the required formalities in the Urban Renewal

Law.

But after three new members were elected to the City Council earlier this month, the new

City Council saw an opportunity to renege on the City’s commitment to Centerra South. Without

proper public notice, the new City Council added two items to its first meeting agenda: one to

rescind the Plan and one to rescind the MFA. Without meaningful public comment, the City

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Council passed both motions. Further, the City Council did not, and does not intend to, put the

matter to Loveland voters as required by the City’s Charter.

Because this sort of slapdash process violates the Urban Renewal Law and the Loveland

City Charter, the City Council’s motions should be declared void and the City should be

restrained and enjoined from taking any action consistent with the motions.

BACKGROUND

McWhinney owns approximately 140 acres of land near Highway 34 and I-25. This land

was included in the Crossroads Corridor Plan. McWhinney envisioned transforming this land

into a unique community unlike any other in northern Colorado, which McWhinney named

Centerra South. As designed, Centerra South will be a vibrant, pedestrian-focused community. It

combines parks and open space, a variety of attainable housing options, retail offerings, a

specialty and organic grocery, and jobs and office space.

As the master developer, McWhinney has spent years preparing for the development of

Centerra South, which is—in all—an approximately $1 billion project. It has spent in excess of

$10,000,000 on the project to-date. To fund the significant public improvements that would be

required by the Centerra South development, and which would greatly contribute to the City’s

tax base, McWhinney sought some public cost sharing for about 15% of the overall cost of the

project. In doing so, McWhinney met with representatives of LURA and the City to negotiate the

relevant terms of the MFA to provide additional public financing for the funding of the regional

infrastructure required to serve not only the development but also surrounding properties. To

address these points, McWhinney worked with LURA and the City to create the Plan—a new

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urban renewal plan that moved the Centerra South area into its own plan area, and authorized tax

increment financing for a 25-year term.

After following all the necessary formalities of the Urban Renewal Law, the City Council

approved the Plan at its public meeting on May 2, 2023. At its next meeting, on May 16, 2023,

the City Council approved the MFA. In the following months, after negotiating the inclusion of

incremental property tax revenues from Larimer County, the City Council followed the

necessary formalities to consider a substantial modification to the Plan. At its meeting on

October 3, 2023, the City Council approved the substantial modification and ratified the Plan.

On November 7, 2023, three new members were elected to the Loveland City Council.

Further, Loveland voters approved a ballot question that amended the City Charter to require that

City Council action modifying an urban renewal plan must be subsequently ratified by voters.

On November 16, 2023, less than a week before the City Council’s first meeting

including the new members, two items were added to the council’s meeting agenda: (1) a motion

to rescind Resolution #R-50-2023, which approved the Centerra South Urban Renewal Plan at

the May 2, 2023 City Council meeting; and (2) a motion to rescind Resolution #R-54-2023,

which approved the MFA at the May 16, 2023 City Council meeting. (There was no proposed

motion to address Resolution #R-111-2023, which approved substantial modifications to, and

ratified, the Plan on October 3, 2023.) Although these motions, at a minimum, constituted

substantial modifications to the Plan under the Urban Renewal Law, the City Council did not

publish proper public notice of these agenda items, provide for public hearings on the motions,

or otherwise plan to submit these matters to Loveland voters for final approval. At their meeting

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on November 21, 2023, the City Council passed each of these motions without public comment.

The City Council now considers the Plan and the MFA rescinded and the matter closed.

McWhinney was moving toward groundbreaking on its development early next year.

Now, with the irregular action of the City Council threatening the public-private partnership

underlying Centerra South, these plans are in jeopardy. Only immediate relief from the City

Council’s improperly adopted motions will allow McWhinney to proceed with the lawfully

approved plans for Centerra South. To be clear, absent a TRO and injunctive relief from this

Court, Defendant’s unlawful abuse of political power will torpedo the Centerra South

development as currently planned. Concurrent with the filing of this motion, McWhinney is

filing a verified complaint asserting various claims for relief against the City.

LEGAL STANDARD

C.R.C.P. 65 empowers this Court to grant equitable relief as necessary to prevent

irreparable injury to plaintiffs. In deciding a motion for injunctive relief, district courts must

consider the factors outlined in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982). Under

Rathke, the party seeking injunctive relief must demonstrate: (1) there is a reasonable probability

of success on the merits; (2) there is a danger of real, immediate, and irreparable injury that may

be prevented by injunctive relief; (3) there is no plain, speedy, and adequate remedy at law; (4)

the granting of an injunction will not disserve the public interest; (5) the balance of equities

favors the injunction; and (6) the injunction will preserve the status quo pending a trial on the

merits. Id. at 653–54. The grant of injunctive relief lies within the sound discretion of the district

court and will be reversed only upon a showing of an abuse of that discretion. Scott v. City of

Greeley, 931 P.2d 525, 530 (Colo. App. 1996).

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 ARGUMENT

I. The Rathke Factors Require a Temporary Restraining Order and Preliminary

Injunction Against Defendant.

A. Factor One: Reasonable probability of success on the merits

McWhinney has a reasonable probability of succeeding on the merits of all its claims,

including the claims that form the basis of this TRO request: the claims for violation of the

Urban Renewal Law and the City Charter.

The Urban Renewal Law does not permit a governing body to rescind an already-

approved urban renewal plan. Indeed, as McWhinney’s more than $10,000,000 commitment

shows, approving an urban renewal plan and committing public funds to assist the plan induces

substantial reliance from the plan’s partners. If governing bodies could unilaterally rescind urban

renewal plans whenever the balance of political power shifts, there would be immense risk to any

of the governing bodies’ business partners. Because their motions purport to rescind the Plan and

the MFA, the City Council’s actions to the contrary are in clear violation of the Urban Renewal

Law.

Further, while Urban Renewal Law does permit substantial modification1 of approved

plans, it requires a governing body like the City Council to hold a public hearing on such

modifications; to provide 30-days’ notice of the hearing by publication in a local newspaper; and

to submit the proposed modification to the board of county commissioners at least 30 days

1
A “modification” means “a change to something; an alteration or amendment.”
Modification, Black’s Law Dictionary (11th ed. 2019). “Recission,” on the other hand, means
“[a] party’s unilateral unmaking of a contract [or other legal document] for a legally sufficient
reason.” Recission, Black’s Law Dictionary (11th ed. 2019). Clearly, the Urban Renewal Law’s
grant of power to modify an urban renewal plan, which contemplates the plan’s continued
existence as amended, does not give the City Council the power to rescind or unmake a plan.

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before the hearing. C.R.S. § 31-25-107(3)(a), (3.5)(a). Here, the City Council first raised the two

items in question when they were added to its meeting agenda on November 16, 2023—less than

a week before the meeting where it considered and approved them. They did not publish notice

of the meeting items in the local newspaper or provide the required notice to the Board of

County Commissioners of Larimer County. There can therefore be no question that the City

Council did not comply with the 30-day notice provisions specified in section -107(3)(a) and

(3.5)(a).

Even further, at a minimum, the motions constituted a substantial modification of the

Plan and the MFA. Section -107(7) provides that a modification that “substantially change[s]

provisions of the urban renewal plan regarding . . . authorization to collect incremental tax

revenue, the extent of the use of tax increment financing, the scope or nature of the urban

renewal project, [or] the scope or method of financing . . . as previously approved,” is a

“substantial [modification] and subject to all of the requirements of this section.” The motions

revoked a previously approved Plan and MFA, which authorized the collection of incremental

tax revenue and changed the scope and method of financing the Centerra South project. The

motions, if allowed under the law, are a substantial modification under the definition in section -

107(7) and are subject to the requirements of section -107(3)(a) and (3.5)(a). Applying the plain

language of the Urban Renewal Law, McWhinney therefore has a reasonable probability of

succeeding on the merits on its claim for violation of the procedure in the Urban Renewal Law.

Alternatively, the same is true of McWhinney’s claim under the City Charter. On

Election Day, Loveland voters approved the addition of Section 15-9 to the Loveland City

Charter. This new section provides that any City Council action modifying an urban renewal

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plan must be subsequently ratified by the registered electors of the City if the modification

authorizes a change to tax increment financing, revenue sharing, or cost sharing. Section 15-9

became immediately effective upon the date of approval, November 7, 2023.

Again, the City Council’s motions purporting to rescind the Plan and the MFA revoked

the previous authorization of tax increment financing and cost sharing for the Centerra South.

They therefore modified the Plan and the MFA. Because these modifications occurred on

November 21, 2023, they are subject to Section 15-9 of the Loveland City Charter. The motions

therefore are required to be submitted to Loveland voters at the next election for ratification

before they can take effect and before any City action on their basis would be permissible.

B. Factors Two and Three: Danger of real, immediate, and irreparable injury
that may be prevented by injunctive relief and lack of a plain, speedy, and
adequate remedy at law

Unless the City is restrained from giving effect to the motions it passed on November 21,

2023, McWhinney will be immediately and irreparably harmed. As master developer of Centerra

South, McWhinney has signed on other businesses to the Centerra South development and plans

to break ground in 2024. Any uncertainty or delay on the project over the coming weeks and

months risks seeing partner businesses back out of the project and therefore jeopardizes the

entire development plan.

To be clear, McWhinney is rapidly approaching important dates to commence

development. Because of the City Council’s recently passed motions rescinding the Plan and the

MFA, there is significant uncertainty surrounding the viability of the Centerra South

development. This uncertainty—or any delay caused by the uncertainty—threatens the entire

project as planned. Waiting for the litigation process to run its course will moot this matter—and

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reward the City Council for purposefully disregarding the law. Therefore, no other remedy can

provide McWhinney all the relief requested. As long as the Plan and the MFA are unlawfully in

place, the viability of the entire Centerra South project as planned is at risk.

C. Factors Four, Five and Six: An injunction would serve the public interest,
with favorable equities, while preserving the status quo

The public interest and equities strongly favor the City Council complying with the basic

procedures specified by the General Assembly and imposed by the Loveland voters. In other

words, there is no public interest in green-lighting the City Council’s purposeful disregard of the

law and abuse of its political power.

Further, an injunction will prevent the very abuses that C.R.S. section 31-25-107 and

Section 15-9 of the Loveland City Charter are designed the prevent. The 30-day notice procedure

and the required approval from Loveland voters are meant to ensure slow and deliberate

decision-making when approving and modifying urban renewal plans and to provide sufficient

opportunity for public input. Yet, the City Council’s actions have tried to make a hasty decision

and to insulate it from public view as much as possible. The City Council’s rash decision-making

process runs counter to how urban renewal plans, including the Centerra South Plan, are

developed and approved.

Nor would a TRO or preliminary injunction harm the City Council. Rather, it would

ensure that there is legal certainty around its attempts to modify the Plan and the MFA and

would guard against the City Council making the sort of quick decision that the Urban Renewal

Law does not contemplate.

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 Moreover, a TRO and preliminary injunction will preserve the status quo pending a

hearing on a motion for a preliminary injunction and/or expedited declaratory relief pursuant to

C.R.C.P. 57(m).

D. Entering a TRO comports with Rule 65(b)

Finally, under Rule 65(b), the Court can enter a TRO without notice to the adverse party

only if (1) it clearly appears from specific facts shown by affidavit or by verified complaint or by

testimony that immediate and irreparable injury, loss, or damage will result to the applicant

before the adverse party can be heard in opposition, and (2) the applicant’s attorney certifies to

the Court in writing or on the record the efforts, if any, which have been made to give the notice

and the reasons supporting his claim that notice should not be required.

As explained above and in the Verified Complaint, McWhinney will suffer irreparable

harm if the City Council’s motions to rescind the Plan and the MFA are allowed to stand. This

said, McWhinney has already provided the Loveland City Attorney with a courtesy copy of these

papers and has agreed to provide notice to the City Attorney of the date and time when this

motion will be considered by the Court.

CONCLUSION

WHEREFORE, McWhinney requests that the Court:

a) Issue a temporary restraining order and preliminary injunction directed at the

City, restraining and enjoining it from taking any action consistent with the two motions it

approved on November 21, 2023 concerning the Centerra South Urban Renewal Plan and its

Master Financing and Intergovernmental Agreement;

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 b) Enter an order directing Defendant to show cause why the Court should not enter

a declaratory judgment under the expedited procedure allowed by C.R.C.P. 57(m) that the

motions described above are void ab initio for failing to comply with (a) the statutorily imposed

30-day notice requirement, and (b) Section 15-9 of the Loveland City Charter; and

c) Award McWhinney all other relief authorized and appropriate under Colorado

law, the MFA, or other applicable authority.

Dated: November 28, 2023.

BROWNSTEIN HYATT FARBER SCHRECK, LLP

By: s/ Christopher O. Murray

Christopher O. Murray, #39340
Julian R. Ellis, Jr., #47571
Robert Bacaj, #52376

Attorneys for McWhinney.

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