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District Court, Boulder, County, Colorado

Court Address: 1777 6th Street

Boulder, CO 80301



Defendant: Case Number:


Division: Courtroom:
Attorney for the Plaintiffs:
Shea L. Burchill, #32458
231 Coffman Street
Longmont, CO 80501
Q^q 4e4-0861
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Comes now, the Plaintiffs, Kent S. McDonald and Patricia A. McDonald ("Plaintiffs"),
by and through their attorney, Shea L. Burchill, and for the Complaint against the Defendant, the
City of Longmont, state:


Plaintiffs are natural persons over the age of l8 years who reside in Longmont, Colorado.

Defendant, the City of Longmont, is a municipal government located in Boulder County,



This Court has jurisdiction over the Plaintiff s claims pursuant to Article VI,
Section 9 of the Colorado Constitution.
Venue is proper in this Court pursuant to Colo. R. Civ. P. 98(c)


1. The City of Longmont ("City") has notified the Plaintiffs that it intends to cut down the
cottonwood tree presently located at the Plaintiffs' residence during the week of March 20,2017.
The cottonwood's trunk is located in the City's right-of-way, but its roots and limbs extend
substantially onto Plaintiffs' property.

2. The cottonwood was planted in 1979. The Plaintiffs have cared for it regularly since that
time, however, the City has also cared for routinely it by trimming its branches, injecting it with
treatments, spraying it with water, and by having its workers hand-pick cotton pods.

3. The City's municipal code indicates that "nuisance" trees with 24 inch diameter trunks or
larger "shall be permitted to remain, but the city may remove a tree of any size from city
property". L.M.C. 13.24.100(C).

4. The cottonwood's trunk located at Plaintiff s residence is well-over 24 inches in

diameter. The City permiued the tree to grow there for the last 38 years.

5. The cottonwood is a mature tree that provides significant shade to the Plaintiffs' home.
The Plaintiffs do not have air conditioning and depend upon that shade to cool their home. The
shade and beauty the tree provides also increases the value of the Plaintiffs' home.

6. At some point in the last 24 months, the City's Natural Resources Manager, David Bell,
redrafted the City's'opolicy" associated with L.M.C.13.24.100(C). Mr. Bell disclosed to
Plaintiffs that he wrote the policy with the cottonwood at Plaintiffs' residence specifically in
mind. Plaintiffs' understanding of the policy (which has never been provided for Plaintiffs to
review) is that where a majority of neighbors in close proximity to a nuisance tree wish it to be
removed, the tree will be removed.

7. The City has notified Plaintiffs that it does not believe they have a property right
associated with the tree and that therefore they are not entitled to an administrative appeal of the

8. The Plaintiffs request the Court enter a declaratory judgment pursuant to C.R.C.P. 57 on
the following bases:

(a) Plaintiffs contend that they have a property interest in the cottonwood tree. The
cottonwood's roots and limbs extend substantially over Plaintiff s property line. The
tree has been jointly cared for by both the Plaintiffs and the City.
A test in determining whether trees are boundary line subjects entitled to protection is
whether they were jointly cared for. Rhodigv. Keck, 421P.2d729 at 731 (Colo.
1966). See also Love v. Klosky 2016 COA 131 where the Court cites Rhodig for the
rule that a tree that is jointly cared for straddling a boundary may not be cut down
over one owner's objections.

While the Plaintiffs watered and otherwise cared for the cottonwood over the last 38
years, the City has also cared for the hee. The City has trimmed branches, injected
the tree, sprayed the tree with fire hoses, and had its workers pick cotton pods. There
is no question that the tree borders the Plaintiff s property line and that both the City
and the Plaintiffs cared for the tree. Therefore, the Plaintiffs do have a property
interest in the tree and it should not be removed over the Plaintiffs' objection.

(b) Plaintiffs contend that the City has acted arbitrarily and capriciously in selectively
enforcing L.M.C $13.24.100 related to "nuisance" trees.

Mr. Bell's admission that he drafted the policy associated with L.M.C. $13.24.100
with the Plaintiffs cottonwood specifically in mind is clear and convincing evidence
of the City's selective enforcement of its code. There are numerous cottonwood trees
located on City property throughout Longmont. The City has not removed these ilees
and on information and beliel has no plans to do so. It is an abuse of discretion for
the City to draft a removal policy with one cottonwood specifically in mind and its
selective removal of one targeted tree constitutes arbitrary and capricious action.

(c) The City's removal of the tree is property interest taking under the 5s and 14ff
Amendments to the United States Constitution.

The Plaintiffs' cottonwood is a mature tree that provides significant shade to their
property. The Plaintifls do not have air conditioning and depend upon the tree to help
cool their home in the summer.

Mature landscaping significantly increases the value of a home. The City's action in
removing the tree will radically reduce the value of Plaintiffs' home.

The City itself places monetary value on mature trees. In 2016, the City fined Regel
& Associates, LLC $35,630.00 for destroying trees located in the Crty's right-of-way.

(d) The City's action now to enforce the code against a tree that has been planted for
nearly 38 years is barred by equitable laches.

Laches is an equitable doctrine that may be asserted to deny relief to a party whose
unconscionable delay in enforcing his rights has prejudiced the party against whom
relief is sought. Robbins v. People, 107 P.3d 384 at 388 (Colo. 2005).
A laches defense comprises three elements: (1) full knowledge of the facts by the
party against whom the defense is asserted, (2) unreasonable delay by the party
against whom the defense is asserted in pursuing an available remedy, and (3)
intervening reliance by and prejudice to the party asserting the defense. Hickerson v.
Vessels, 316 P.3d 620 at623 (Co1o. 2014).

The City has had ample time to act to remove the tree. Mr. Bell has admitted to the
Plaintiffs that his file containing neighbor complaints and requests for removal on the
tree goes back over 20 years. Meanwhile, the Plaintiffs' home value and living
conditions have become interrelated with the shade and beauty the tree provides.

9. Since the City has indicated its intent to remove the tree commencing the week of March
20,2017, the Plaintiffs are applying for immediate injunctive relief by way of a preliminary
injunction and restraining order pursuant to C.R.C.P. 65. Plaintiffs' Motion for Preliminary
Injunction and Restraining Order is filed contemporaneously with this Verified Complaint.

WHEREFORE, the Plaintiffs respectfully request that this Court issue a declaratory
judgement pursuant to C.R.C.P. 57 regarding Plaintiffs' rights associated with the City's stated
intention of removing the Plaintiffs' cottonwood tree and for such other relief as the Court may
deem appropriate.

DATED this 16th day of March, 2017.

Respectfully submitted,


Shea L. Burchill
Attorney for the Plaintiff

I swear or affrrm under penalty of perjury that the information contained in this
APPLICATION FOR INJUNCTM RELIEF is true and correct to the best of my

,-Y fl'{ ,.
Kent S. McDonald

Subscribed and affirmed, or sworn to before me in the County of Boulder, State of

Colorado, this j1:$ay of March,2017.

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W otary Public
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