Northeast Colorado Springs Neighborhood Association

Text of Brisben Lawsuit

Jul 23, 2000

OK, some of you have probably heard some rumors to the fact that NECSNA and one of our directors, Eric Krystkowiak separately, are being sued by the Brisben organization.

The rumors are true.

The allegations surrounding the case are as follows:(This is a scanned version of the formal filing)"

COMPLAINT

W. O. BRISBEN COMPANIES, INC.

Plaintiff,

V?°

NORTHEAST COLORADO SPRINGS NEIGHBORHOOD ASSOCIATION, a Colorado corporation; and ERIC KRYSTKOWIAK,

Defendants.

Plaintiff W. O. Brisben Companies, Inc. ("Brisben"), by and through its attorneys, states and alleges as follows:

GENERAL ALLEGATIONS

1. Brisben is a corporation organized and existing under the laws of the State of Ohio. Brisben is qualified to do business and is doing business in the State of Colorado.

2. Defendant Northeast Colorado Springs Neighborhood Association (the "NECSNA"), is a Colorado corporation with its principal place of business in El Paso County, Colorado. Defendant Eric Krystkowiak is an individual residing in E1 Paso County, Colorado. Venue is proper in this Court pursuant to C.R.C.P. 98(c)(1).

3. The Colorado State Land Board currently is the owner of approximately 8.03 acres located southeast of Research Parkway and Austin Bluffs Parkway in the City (the "Property"). Brisben has a contract to purchase the Property, on which Brisben proposes to construct a 140 unit affordable housing complex known as the Bluffs at Briargate.

4. On or about June 15, 1998, Brisben met with the adjoining residents, who were represented by the NECSNA, to present its proposed plan for developing the Bluffs at Briargate. Brisben's development plan at that time called for 160 dwelling units (19.93 dwelling units per acre), which satisfied the density requirements established in the PUD at the time of zoning.

5. On or about June 19, 1998, Brisben formally submitted a revised development plan to the City of Colorado Springs (the "City"), which incorporated changes requested by the adjoining residents and NECSNA at the June 15 meeting. NECSNA opposed the plan as originally submitted.

6. Between June 19, 1998 and November 2, 1998, Brisben revised the proposed plan on a number of occasions to accommodate changes requested by the City and by NECSNA. The orientation and location of buildings was revised, the number of buildings and the number of dwelling units was revised, access to public roads was redesigned, emergency access points were changed, and the landscaping was completely redesigned. NECSNA continued to oppose the plan.

7. On or about November 19, 1998, representatives of Brisben, the City, and NECSNA met and agreed to mediate a resolution of the outstanding issues. All parties were represented by counsel. An agreement to mediate was executed by the attorneys for Brisben, NECSNA and by the City' s Planning Department.

8. Pursuant to the agreement to mediate a mediation was held on or about December 7, 1998. Representatives from the City, Brisben and NECSNA were present and were represented by counsel.

9. An agreement was reached at the mediation, whereby Brisben agreed to certain modifications to the proposal, including a reduction of the number of dwelling units to 140 units; conditions relating to the orientation, height and number of buildings; connection between internal drives and public streets; emergency access points; landscaping and lighting.

10. In exchange for these modifications and conditions NECSNA agreed that it would support the Bluffs at Briargate Development.

11. On or about December 10, 1998, the parties executed a document entitled "Development Proposal" that memorialized the agreement reached at the mediation. This Development Proposal was executed by NECSNA and its counsel; the Planning Department, the Public Works Department, and the Senior Corporate Attorney for the City of Colorado Springs; and Brisben and its counsel, attached as Exhibit "A".

12. In accordance with the agreement reached at the mediation, Brisben revised its development plan. The revised plan satisfied the agreement reached at the mediation in all respects.

13. At a public hearing held on or about January 7, 1999, the Planning Commission considered Brisben's development plan. The Planning Department submitted a staff report to the Planning Commission recommending approval of the development plan. In the staff report, the Planning Department concluded that the plan complied in all respects with the development plan review criteria in ?§ 14.1-4-602(C) of the Zoning Code and the additional criteria set forth in ?§ 14.1-2-102 (H)(4) of the Zoning Code.

13. In breach of its agreement to support Brisben's development plan, NECSNA opposed the plan at the public hearing before the Planning Commission. The Planning Commission approved Brisben's plan over the NECSNA's objection.

14. In further breach of its agreement to support Brisben's development plan, NECSNA appealed the Planning Commission's decision to the City Council.

15. A public hearing was held before the City Council on or about January 26, 1999, to consider the appeal of NECSNA. In further breach of its agreement to support Brisben's development plan, NECSNA opposed the development plan at the public hearing. After receiving such opposition, the City Council remanded the matter to the Planning Commission for further consideration.

16. The Planning Commission reconsidered the development plan at a public hearing held on March 4, 1999. NECSNA further breached its agreement by opposing the development plan at the public hearing. The Planning Commission again approved Brisben's development plan.

17. In further breach of its agreement to support Brisben's development plan, NECSNA again appealed the Planning Commission's decision to the City Council.

18. On April 27, 1999, the City Council conducted a de novo public hearing to consider the appeal of NECSNA. NECSNA opposed the plan at the public hearing.

19. The City Council overturned the decision of the Planning Commission, and rejected Brisben's development based on NECSNA's objections.

20. The NECSNA's breach of its agreement to support Brisben's development plan at the public hearings before the Planning Commission and the City Council was primarily the result of the actions of Defendant Krystowiak. Defendant Krystowiak presented the NECSNA's objections to Brisben's plan and encouraged the Planning Commission, and the City Council, to deny Brisben's development plan.

FIRST CLAIM FOR RELIEF Breach of Contract - NECSNA

21. Brisben incorporates by reference the allegations of paragraphs 1 through 20 above as if set forth herein.

22. The NECSNA entered into a contract with Brisben whereby Brisben agreed to certain modifications to the proposal, including a reduction of the number of dwelling units to 140 units; conditions relating to the orientation, height and number of buildings; connection between internal drives and public streets; emergency access points; landscaping and lighting. In exchange for these modifications and conditions NECSNA agreed that it would support the Bluffs at Briargate Development.

23. The NECSNA failed in its promise to support the Bluffs at Briargate Development. On at least six separate occasions, NECSNA either spoke at a public hearing in opposition to the Bluffs at Briargate Development or appealed a favorable ruling in an attempt to have it overturned.

24. NECSNA's breach of its contract damaged Brisben. Brisben's monetary damages are of a continuing nature and Brisben seeks an award of monetary damages as may be determined at trial. Brisben reasonably believes its damages are approximately $16,383,000 which includes development construction fees, lost tax credits, estimated cash flow and sale proceeds.

SECOND CLAIM FOR RELIEF
Intentional Interference with Contractual Relations - Krystkowiak

25. Brisben incorporates by reference the allegations of paragraphs 1 through 20 above as if set forth herein.

26. Brisben had a contract with the NECSNA in which the NECSNA agreed that it would support the Bluffs at Briargate Development.

27. Defendant Krystkowiak knew of NECSNA's contract with Brisben.

29. With such knowledge, Defendant Krystkowiak, by words or conduct, or both, intentionally induced the NECSNA not to perform its contract with Brisben and interfered with the NECSNA's performance of its contract with Brisben.

30. Defendant Krystkowiak's words or conduct, or both, caused Brisben to incurdamages.

31. Brisben's monetary damages are of a continuing nature and Brisben seeks an award of monetary damages as may be determined at trial. Brisben reasonably believes its damages are approximately $16,383,000 which includes development construction fees, lost tax credits, estimated cash flow and sale proceeds.

WHEREFORE, Brisben respectfully prays for relief as follows:

1. That the Court enter judgment in favor of Brisben and against the NECSNA on Brisben's first claim for relief and award Brisben actual and compensatory damages as may be established at trial;

2. That the Court enter judgment in favor of Brisben and against Defendant Krystkowiak on Brisben's second claim for relief and award Brisben actual and compensatory damages as may be established at trial;

3. That, if warranted and available against either or both defendants, that the Court award reasonable punitive damages as may be determined at trial in addition to Brisben's compensatory damages;

4. For court costs, expert witness fees, and for such other and further relief the court deems just and proper."

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NOW, friends and neighbors, we can let this pass and get a default judgement against us, OR we can do everything in our power to continue to exercise our right to stand up for what we believe in and exercise our First Amendment Right to Free Speech!

In order to carry the battle to the opposition, we as the NorthEast Colorado Springs Neighborhood Association need to have your support for Eric and the Association. We feel that the charges against Eric are frivolous and intimidating and are meant to make US go away! We ask that those of you who pledged last year and did not send in a contribution to help with the costs, do that NOW. Additionally, we need funds and support to be able to fend off the other attacks and court costs that are bound to occur. Anyone who knows a lawyer who would work 'Pro bono' would also be a very nice touch.

As you may know, Eric was our spokesman for most of the effort against the Brisben architecture. He was always trying to find a workable solution that would be acceptable to all parties AND would meet the City Code! He did the research, placed his own interests way behind those of the organization, and does not deserve this kind of treatment.

If Brisben, or any other developer, is allowed to prevail in a matter of this importance, it will be impossible to find anyone in any city in this country who will be willing to stand up and say "NO, I will not agree to this kind of development!" AND "NO, we will not be intimidated by a large corporation trying to use the law against us when we are in the right!"

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I await your comments as soon as possible.

Lee Cool,
President
NECSNA