GRAND COUNTY DISTRICT COURT

307 Moffat Avenue

P.O. Box 192
Hot Sulphur Springs, Colorado
80451

DATE FILED: December 2, 2014 2:23 PM

FILING ID: 1C045DA9A6477
CASE NUMBER: 2014CV30130

Plaintiffs:
COURT USE ONLY
MMK Limited, LLC d/b/a/ Grand Life Solutions, a Colorado
limited liability company
LTTK, LLC a Colorado limited liability company
v.
Defendants:
The Board of Trustees of the Town of Granby, Colorado;
Jynnifer Pierro, Mayor of the Town of Granby in her official
capacity, and Deborah K. Hess, Town of Granby Town Clerk, in
her official capacity
Attorneys for Plaintiff MMK Limited, LLC:
Robert T. Hoban, #33151
Jean E. S. Gonnell. #44623
Hoban & Feola, LLC
The Equitable Building
730 17th Street, Suite 900
Denver, CO 80202
(303) 674-7000
Fax: 303-382-4685

Case Number: 14CV030130

Division: 1
Attorney for LTTK, LLC:
Ronald Stern
Stern & Newton, P.C.
PO Box 50
Granby, CO 80446
970/887-2163
Registration #5929

PLAINTIFFS BRIEF FOR HEARING ON INJUNCTIVE RELIEF

Plaintiff MMK Limited, LLC, d/b/a Grand Life Solutions (MMK) and LTTK, LLC (LTTK;
collectively, Plaintiffs), by and through undersigned counsel, Hoban & Feola, LLC, and Stern
& Newton, P.C., respectively, hereby submit this Hearing Brief for Injunctive Relief pursuant to
C.R.C.P. 65, as follows:
INTRODUCTION AND BACKGROUND
a. Legislation of Marijuana in the State of Colorado and Grand County.
Plaintiffs seek an injunction and declaratory relief in this matter because Defendant, the
Town of Granby, is specifically and unlawfully targeting MMK and attempting to annex
property in unincorporated Grand County as a means to stop the legal business of MMK. This
potential action is in direct defiance of the annexation laws of the State of Colorado.
LTTK owns the subject property (Lot 9) that is the subject of Granbys proposed
annexation; MMK leases said real property from LTTK. As set forth in the Complaint, Plaintiffs
oppose any annexation of Lot 9 (Highlands Subdivision) by the Town of Granby, located in
unincorporated Grand County (Lot 9). Lot 9 is located on the easterly side of Highway 40 and
directly across from Alpine Lumber, and is currently comprised of two buildings that are divided
into a number of units, some of which are rented to small businesses.
In 2012, the Colorado voters (including the majority in Grand County) voiced their support
to amend the Colorado Constitution (Amendment 64) allowing for the recreational use of
marijuana for persons over the age of twenty-one, and to tax marijuana similar to alcohol.
Amendment 64s passage allows local municipalities to prohibit the operation of a marijuana
business through the enactment of an ordinance. Conversely, it allows the localities to enact
ordinances or regulations governing the time, place, and manner of marijuana establishments.
Colo. Const. art. XVIII, 16.

In response to the passage of Amendment 64, the Grand County Board of County
Commissioners (BOCC) passed a Resolution and corresponding Ordinance in January, 2014,
regulating marijuana businesses. The Resolution of the BOCC states that after reviewing and
considering the proposed Grand County Marijuana Licensing Regulation and Ordinances, it
found that adopting the proposed Grand County Marijuana Licensing Regulation and
Ordinance effective, February 1, 2014, is in the best interest of the health, safety, prosperity and
welfare of the citizens of Grand County. Exhibit A- Grand County, Resolution No. 2014-1-26
and Ordinance #14 recorded at Reception No. 2014000484 (Ordinance). This Ordinance
expressly allows for the sale and cultivation of marijuana in unincorporated areas of Grand
County.
The Town of Granby (Granby), utilizing the same rights afforded under Amendment 64,
has chosen to ban all marijuana-related business activities within its boundaries. Colo. Const. art.
XVIII, 16; The Granby Municipal Code, sec. 16.95.010. This is acknowledged.
b. The Granby Realty Partners, LLC Property and the threats made by the Town of
Granby.
MMK is a Colorado small business owned by members Kevin Speier and Matthew Brien. In
May 2014, MMK began planning a legal recreational marijuana business. Early in this endeavor,
they found unincorporated Grand County to be an attractive option for their new business
venture. As a required part of any marijuana business in the State of Colorado, and per the local
Grand County ordinance, MMK located appropriate real estate for its retail marijuana store and
retail marijuana cultivation facility.
The planned retail location for MMKs business has always been at Lot 9. However, the
cultivation facility was initially planned to be located on property owned by Granby Realty

Partners, LLC, headed by its principal, Mr. Paul Jarvis, a local resident. This property is located
northwest of the HWY 34/40 interchange in unincorporated Grand County (Proposed
Cultivation Property). The Proposed Cultivation Property site included two separate parcels
with dissimilar zoning. One parcel was zoned Forestry and Open while the other was zoned
Tourist. Pursuant to the Ordinance, the parcel needed to be re-zoned from Tourist to either
of the amenable zone options (Forestry and Open or Business). Due to the contiguous parcel
being Forestry and Open, the ordinance allowed for the rezoning of the improperly zoned
parcel. Granby Realty Partners, LLC, at the behest of MMK, initiated a rezoning process.
As principal of the landowner of the Proposed Cultivation Property, Mr. Jardis applied with
Grand County Department of Planning and Zoning (Dept. of Planning and Zoning) for the
Proposed Cultivation Property rezoning. On June 11, 2014, the Dept. of Planning and Zoning
heard and granted the rezoning request, and later issued a Certificate of Recommendation.
Exhibit B-June 11, 2014, Certificate of Recommendation.
Pursuant to the Ordinance, MMK was also required to obtain a Special Use Permit for which
they then applied. Exhibit A- Ordinance, Sec. 6 2. In preparing for the hearing before the Dept.
of Planning and Zoning, Grand County notified the Town of Granby and all owners within 500
feet of the location as to the proposed use, and published a notification in the Middle Park Times
concerning the upcoming Special Use Permit hearing. Grand County staff recommended
approval of the Special Use Permit for MMK, for purposes of the hearing. Exhibit C-July-9,
2014, Certificate of Recommendation, pg. 5.
It was this notification, either through the publication in the local newspaper or through the
courtesy notification done by the Dept. of Planning and Zoning, that brought opposition from
Granby residents. The most notable letter was sent by Wally Baird, the Town Manager of

Granby. This letter clearly stated that Granby had voted and agreed to annex the Proposed
Cultivation Property specifically in order to prevent MMKs business endeavor from coming to
fruition. Exhibit D Letter.
As required once again by the Ordinance, the County supplied the Dept. of Planning and
Zoning with the Certificate of Recommendation regarding the July 9, 2014 Special Use
Permit. Exhibit C. A hearing took place on July 9, 2014, with Mr. Speier appearing on behalf of
MMK to answer any questions and to clear all anxieties as to the use of the Proposed Cultivation
Property. The hearing brought multiple questions pertaining to odors, traffic, and light concerns,
all of which Mr. Speier answered expeditiously and thoroughly. Many of the raised concerns are
already addressed by the rules and regulations of the Colorado Department of Revenue,
Marijuana Enforcement Division; particularly those related to odor control and mitigation.
Regardless of the data and best efforts provided by Mr. Speier, the Dept. of Planning and
Zoning denied the Special Use Permit. MMK still had an opportunity to make its case to the
BOCC, which is empowered to make the ultimate determination as to the requested Permit.
Although MMK still had the opportunity to appear before the BOCC, the explicit threat from
Wally Baird on behalf of Granby was troublesome. MMK did not want the Proposed Cultivation
Property, or any associated area thereof, to be annexed merely because Granby disapproved of
MMKs intended use. Accordingly, due to this large and looming threat, and the landowners
concern of potential annexation of its property, MMK withdrew its Special Use Permit
application before its hearing in front of the BOCC. Exhibit E-Withdrawal Letter. Granby
immediately ceased all attempts to annex the Proposed Cultivation Property upon receipt of
MMKs withdrawal letter.
c. Lot 9 and the Town of Granbys unlawful attempt to annex.

MMK shifted its focus to Lot 9 as it was already under lease as the future space for the
marijuana retail store. The landlord, LTTK, and its principal, Teddy Kellner, amended the lease
to allow for the cultivation facility. This was a benefit to LTTK as they had been looking for a
suitable tenant for years, to no avail.
Upon receipt of a full application for a marijuana license, Grand County is required to notify
the Dept. of Planning and Zoning, the Grand County Sheriffs Department, and the Local Fire
District. Exhibit A- Ordinance, Sec. 9, a. Granby was also made aware of MMKs intentions
regarding Lot 9. In the beginning of October 2014 and immediately after receiving notification
of this new location, Granby again decided to target MMK, and elected to proceed with
annexation proceedings.
MMK was notified of this new potential annexation threat and responded by submitting a
formal request for all information pertaining to property that could possibly be annexed by
Granby. Exhibit Request.

Granbys Town Clerk/Planning Coordinator, Deborah Hess,

provided a map showing the possible enclave annexation areas. Exhibit Map. On the Map, the
circled section labeled number 7 included Lot 9. Section 7 appears to be surrounded by
Granby. Within Section 7, the Mayor of the Town of Granby, Jynnifer Pierro, and her husband
operate their own business, Legacy Building Specialties, Inc., which is walking distance from
Lot 9 at 62713 Hwy 40, Granby. ExhibitGIS Map and Sec. of State Business Filing.
After receiving the Map from Granby, MMK requested further information pertaining to the
potential annexation. Granby decided that it would be annexing Section 7, which included Lot 9..
Predictably, this also changed, as Granby was only targeting MMK, as it immediately abandoned
annexation of Section 7. Rather, Granby decided to seek annexation of only one parcel in Section
7 -- Lot 9.

Granby has provided its Notice in the Middle Park Times regarding the upcoming
Emergency Ordinance Annexing Enclave Property into the Town of Granby as required by
their own ordinances. Exhibit ---Emergency Ordinance. The vote pertaining to this Emergency
Annexation is set for December 9th, 2014.
Upon receiving the Emergency Ordinance, both Plaintiffs, separately, sent Granby cease and
desist letters informing Granby that its annexation efforts were not permitted under Colorado
law. Specifically, these letters set forth the legal issues to be addressed in this matter, including:
a. The fact that Lot 9 is not an enclave, and does not meet the statutory definition
pursuant to the Colorado Constitution, sec. 30(1) of Art. II; C.R.S. 31-12-103 and
additional requirements as put forth in C.R.S. 31-12-106; and,
b. The lack of one-sixth property contiguity as required pursuant to C.R.S. 31-12-104
for annexation; and,
c. Granbys actions are made in bath faith and amount to an abuse of discretion, which
prohibits any annexation of Lot 9.
Granby, to date, has refused to acknowledge the applicable law, and is intent on proceeding with
this unlawful annexation.

Consequently, Plaintiffs seek injunctive and declaratory relief

precluding Granby from proceeding with the unlawful annexation, and from wasting precious tax
payer resources in this matter.

LEGAL ARGUMENT
a. Preliminary Injunction Standard
A preliminary injunction is designed to preserve the status quo or protect a party's rights
pending the final determination of a cause. Gitlitz v. Bellock, 11 P.3d 1274, 1278 (Colo. App.
2007). Its purpose is to prevent irreparable harm prior to a decision on the merits of a case. Id.

In considering a motion for a preliminary injunction, the trial court must find that the
moving party has demonstrated (1) a reasonable probability of success on the merits; (2) a
danger of real, immediate, and irreparable injury which may be prevented by injunctive relief;
(3) lack of a plain, speedy, and adequate remedy at law; (4) no disservice to the public interest;
(5) balance of equities in favor of the injunction; and (6) preservation by the injunction of the
status quo pending a trial on the merits. Id. citing Rathke v. MacFarlane, 648 P.2d 648, 653-54
(Colo. 1982).
b. Plaintiffs have a reasonable probability of success on the merits.
Plaintiffs have a reasonable probability of success on the merits as Lot 9, the property
Granby is seeking to annex, does not meet the statutory or constitutional requirements provided
under Colorado law for enclave annexation, as it is not an enclave; rather, it is one sole piece
of property within an enclave.
Pursuant to Colo. Rev. Stat. 31-12-106(1), a municipality can annex an unincorporated
area of land that is contained within the boundaries of a municipality, although such annexation
must remain in accordance with the Colorado Constitution section 30(1)(c) of Article II. This
section of the Colorado Constitution provides:
(1) no unincorporated area may be annexed to a municipality
unless one of the following conditions first has been met:
(c) The area is entirely surrounded by or is solely owned by the
annexing municipality.
Additionally, an enclave is defined as an unincorporated area of land entirely
contained within the outer boundaries of the annexing municipality. Colo. Rev. Stat. 31-12103. Again, the law requires that any area that is to be deemed to be an enclave for purposes of

annexation by a municipality must either be entirely surrounded by or solely owned by the

annexing municipality. Colo. Rev. Stat. . 31-12-106(1); Colo. Const. art. II, 30.
The plain meaning of unincorporated area pertains to the specific areas that are being
considered for annexation. See Cesario v. City of Colorado Springs, 616 P.2d 113, 117 (Colo.
1980) (pertaining to the unilateral annexations provided for in C.R.S. 31-12-106(2) which was
subsequently superseded by statute as put forth in Bd. Of County Comrs of County of Arapahoe
v. City of Greenwood Village, 30 P.3d 846. 849 (Colo. App. 2001); stating that for purposes of
unilateral annexations, the plain meaning of unincorporated area cannot logically include areas
which are not being considered for annexation or areas which have already become part of the
annexing municipality.) See Cesario, 616 P.3d at 117.
In this case, Lot 9 does not meet any of the foregoing definitions of an enclave.
Granby is seeking to annex property that is surrounded by property that is not part of the
municipality.

Plaintiffs do not dispute that Section 7, as a whole is potentially entirely

surrounded by the municipality, but Section 7 is not being annexed. Instead, Granby is seeking to
annex Lot 9 only -- a lone lot in the middle of other unincorporated real property lots that make
up Section 7. See Exhibit Emergency Ordinance, pg. 3.
Plaintiffs have a reasonable likelihood of success on the merits, as Lot 9 does not meet
the definition of an enclave pursuant to C.R.S. 31-12-106, as put forth in the Emergency
Ordinance as the basis for this annexation.
Additionally, if Granby chooses another route of annexation based on one-sixth
contiguity, as put forth in C.R.S. 31-12-104, this potential avenue is also without merit and
unlawful, as Lot 9 is not contiguous with Granby and, thus, does not meet the requirements of
C.R.S. 31-12-104. Exhibit Expert Survey showing lack of one-sixth contiguity.

Finally, Granbys actions are made in bath faith and amount to an abuse of discretion.
Legislative judgments, such as ordinances of annexation, may be reviewed and found void where
there exists bad faith or fraud, or where a municipality has exceeded its jurisdiction or abused its
discretion. See Slack v. Colorado Springs, 655 P.2d 376, 379 (Colo. 1982) (stating that upon a
showing of bad faith or fraud, legislative judgments are reviewable.) See also Caroselli v. Town
of Vail, 706 P.2d 1 (Colo. App. 1985); (in an action where an aggrieved landlord owner disputed
the towns annexation of land that was not contiguous with the annexing town, the Colorado
Court of Appeals found that the town exceeds its jurisdiction, and the annexation was invalid.)
Whether a municipality has abused its discretion in adopting an annexation ordinance
depends on whether (1) the annexed parcel was eligible for annexation; (2) the counsel adhered
to the statutorily prescribed procedures; and (3) the annexation contributed to the well-ordered
development of the city. See Board of County Comrs, Adams County v. County of Denver, 548
P.2d 922, 925 (Colo. App. 1976).
Granby is clearly abusing its discretion. Granby has specifically targeted MMK and seeks to
annex the property MMK intends to lease for the sole purpose of stopping a lawful business
endeavor. Granby unequivocally intends to abuse its discretion by adopting an ordinance
annexing land that is not eligible for annexation. Additionally, the Emergency Ordinance does
not operate uniformly against other unincorporated properties and other neighboring businesses.
Rather, Granby seeks to put MMK out of business as Granby has determined that MMKs
business endeavor is not to its liking. Granby has a right to dictate what happens in its towns
limits, but to direct the business of another Colorado community, is an abuse of discretion.

10

Plaintiffs have a reasonable likelihood of success on the merits under either theory of
annexation law, as Granby simply cannot move forward with the sought annexation under
existing law.

c. There is a danger of real, immediate, and irreparable injury which may be prevented by
injunctive relief.
A preliminary injunction should be granted to prevent harm where harm is alleged.
Graham v. Hoyl, 402 P.2d 604, 606 (Colo. 1965). Generally, irreparable harm has been defined
as certain and imminent harm for which a monetary award does not adequately compensate.
Gitlitz v. Bellock 171 P.3d 1274, 1278-79 (Colo. App. 2007).
LTTKs property and MMKs potential business are in danger of real, immediate and
irreparable injury that may be prevented by injunctive relief, as the irreparable harm does not
solely relate to a monetary award. The entire basis of the annexation by Granby is to stop a legal
business from operating, which not only effects the monetary condition of MMK but also effects
its business overall. See American Television and Communications Corp. v. Manning, 651 P.2d
440, 445-46 (Colo. App. 1982) (pertaining to the difficulty in determining the computation of
monetary damages in the instance of theft of cable services resulting in lost customers, noting the
loss of customers would permanently impair plaintiffs reputation and ability to cultivate
goodwill in the community.)
Additionally, irreparable will not only be caused to MMK, but to the property owner.
LTTK has tried to lease out the property in this case for years to no avail. If Granbys annexation
attempt is not enjoined and a vote passes the Emergency Ordinance there is irreparable injury to

11

LTTK, in the form of not only lost revenues in rent payments, but, potential increases in property
and sales taxes associated with becoming a part of Granby.
More importantly, aside from injunctive and declaratory relief in this matter against the
Town of Granby, neither Plaintiff has any legal recourse to prevent the Town from taking
unlawful action. By definition, Granby will have caused irreparable harm if it takes actions that
is unlawful and unconstitutional, since Colorado law does not afford damages for violations of
the Colorado Constitution. But unlike section 1983, [n]o statutory equivalent exists under
Colorado state law to enforce the state constitution. Vanderhurst v. Colo. Mountain Coll. Dist.,
16 F.Supp.2d 1297, 1304 (D.Colo.1998). Nor have Colorado appellate courts recognized an
implied cause of action to enforce the provisions of the Colorado Constitution. Id.
In sum, Defendants attempted conduct will cause irreparable harm to both MMK and
LTTK if an injunction is not granted.
d.

Plaintiffs lack of an adequate remedy at law.

There is no plain, speedy, and adequate remedy at law aside from this injunctive relief.

while if there is not an adequate remedy at law an injunction will ordinarily be granted. If the
remedy at law is doubtful and obscure, an injunction will be granted. See Hercules Equipment
Co. v. Smith, 335 P.2d 255, 257 (Colo. 1959). In this instance, Plaintiffs have no other adequate
remedy at law to prevent the Town from moving forward with unconstitutional annexation
proceedings. Further, money damages are not an adequate remedy in this case as again, as stated
supra, there is no real calculation for the potential damages to both Plaintiffs in this matter.
Plaintiffs only remedy at law is one of equity. Injunctive relief is warranted and required under
the law.
e. No disservice to the public interest.

12

There is no disservice to the public interest by enjoining the annexation of Lot 9 from
unincorporated Grand County. To the contrary, it is entirely within the publics interest to
prevent a local government from taking unlawful and unconstitutional action, as is the case here.
Moreover, Grand County has chosen, pursuant to the Colorado Constitution, to allow for
the type of business MMK seeks to initiate. This is the countys right pursuant to Amendment
64. Further, as put forth in the Grand County Ordinance pertaining to marijuana businesses, the
Board of County Commissioners decided and voted that allowing marijuana businesses is in
the best interest of the health, safety, prosperity and welfare of the citizens of Grand County.
Exhibit A- Ordinance.
It is apparent that the Town of Granby seeks to decide what is appropriate for the citizens
of unincorporated Grand County through unlawful means. It is Granbys attempts to circumvent
the rights of Grand County and its citizens that is a true disservice to the public interest in this
matter.
Consequently, preventing Granby from taking unconstitutional action, and allowing
MMK to continue with their lawful business is not a disservice to the public interest.
f. The balance of equities favor the injunction.
The balance of equities favors an injunction. Equity will not be served by allowing
Granby to violate the law and to unilaterally decide what is best for the entirety of Grand County.
The balance of equities favors Plaintiffs, as Grand County, utilizing the Colorado Constitution as
its source of empowerment, allows the type of business MMK seeks to create.
Equity does not favor the repeated actions of Granby of chasing down MMK in its legal
business endeavors and abusing its power by threatening annexation of private property. Thus,

13

equity is in favor of an injunction. See. Generally Combined Communications Corp. v. City and
County of Denver, 528 P.2d 249 (Colo. 1974).
g. Preservation by the injunction of the status quo pending a trial on the merits.
An injunction will preserve the status quo pending a trial on the merits. MMK and LTTK
will suffer real immediate and irreparable harm if an injunction is not entered because an
annexation, to be voted on December 9, 2014, will completely paralyze the right of MMK to
begin its lawful business endeavor and thwart and impair LTTKs ability to lease and utilize its
property as it deems appropriate. This injunction can preserve the rights of Plaintiffs. See
generally, Sanger v. Dennis, 148 P.3d 404, 419 (Colo. App. 2006).
The status quo in this situation is MMKs ability to move forward with the licensed
lawful business of its choosing. Grand County has put forth and decided for its populace the
appropriate way to handle business endeavors of its residents, including allowing for a hearing
for said licensure upon receipt of a full application. For Granby to decide what is appropriate for
the entire county is adverse to the decision of the County, but allowable for its city limits. To put
forth their agenda upon areas not currently encompassed in the city limits is an abuse of
discretion and contrary to the Colorado Constitution. The status quo can only be maintained by
the granting of injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court GRANT injunctive relief pending a determination
on the merits in order to preserve the status quo.
DATED: December 2, 2014
Respectfully Submitted,
/s/Jean E. S. Gonnell
Jean E. S. Gonnell
Hoban & Feola, LLC
14

Reg. No. 44623

Ronald Stern
/s/Ronald Stern
Stern & Newton, P.C.
PO Box 50
Granby, CO 80446
970/887-2163
Registration #5929

Certificate of Service
I hereby certify on Tuesday, December 2, 2014, I served a copy of the foregoing document on all
parties via ICCES.

/s/ Jean E. S. Gonnell

Jean E. S. Gonnell

15