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Verified Complaint

Verified Complaint

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Published by westword1
Verified Complaint
Verified Complaint

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Published by: westword1 on Jan 11, 2013
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01/14/2013

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VERIFIED COMPLAINT AND MOTION Page 1 of 2
District Court, City and County of Denver, ColoradoCourt Address:1437 Bannock Street, Room 256Denver, CO 80202Plaintiff/Petitioner:
MORREALE HOTELS, LLC, aColorado limited liability company
 v.Defendant/Respondent:
CITY AND COUNTY OF DENVER,COMMUNITY AND PLANNING DEVELOPMENTSERVICES; MICHAEL ROACH, as CHIEF BUILDINGOFFICIAL; DENVER BOARD OF APPEALS FORCOMMUNITY PLANNING AND DEVELOPMENTCOURT USE ONLY
Case Number:16 Character #: ___________________  ____ DivisionCourtroom Attorney:Michael J. GatesFoster Graham Milstein & Calisher, LLP360 South Garfield Street, 6
th
Floor Denver, CO 80209Phone: (303) 333-9810E-mail: mgates@fostergraham.com  Fax: (303) 333-9786 Atty. Reg. #: 31270
VERIFIED COMPLAINT AND MOTION FOR INJUNCTIVE RELIEF
Morreale Hotels, LLC, through counsel Foster Graham Milstein & Calisher, LLPhereby submit the following Verified Complaint and Motion for Civil Protection Order pursuant to Colo. R. Civ. P. 65 and as grounds therefore state as follows:1. Morreale Hotels owns the property located at 101 North Broadway Street,Denver, Colorado 80203 (the “Property”).2. The Property is leased to a restaurant development and operationscompany that occupies the space as two existing and operating restaurants, El Diabloand Sketch Food & WIne, as tenants.3. This Court has jurisdiction over this matter pursuant to Colo. Const. Art.VI, § 9.
 
VERIFIED COMPLAINT AND MOTION Page 2 of 2
4. Venue is proper with this Court pursuant to Colo. R. Civ. P. 98 as thedefendants are governmental entities or actors in the City and County of Denver,Colorado and the subject Property is located in the City and County of Denver.5. Jesse Morreale is a natural person over the age of 18 years and iscompetent to testify.6. On January 4, 2013, the Defendant Michael Roach as Chief BuildingOfficial issued, without warning, an Order to Vacate the Property effective immediatelyclaiming the building to be in an unsafe condition and that the current occupancy isillegal.7. A true and correct copy of the Order to Vacate and Posting are attachedhereto as Exhibit 1.8. Nothing had changed about the structure since the Defendants wereordered by the Defendant Denver Board of Appeals to vacate a similar order issued inJuly 2012.9. The July 2012 Denver Board of Appeals ruling to vacate the July Order was contingent upon Plaintiffs compliance with certain specific terms detailed in theBoard’s ruling.10. Plaintiffs have complied with these requirements as directed byDefendants and the Board of Appeals ruling11. The Plaintiff was operating under assurances from counsel for theDefendants Community and Planning Development Services and Michael Roach asChief Building Official that they would participate in good faith in the resolution of their differences and would not take any action regarding the Property until it had discussedits conclusions with the Plaintiff. A true and correct copy of that assurance is attachedas Exhibit 2.12. The Plaintiff was justified in relying on this representation. See, e.g.,
Jonesv. Aurora
, 772 P.2d 645 (Colo.App. 1988).13. On the day he issued the Order to Vacate, Defendant Roach contactedSean Yontz, Operations Manager for the tenants at the Property to express that he wassorry that the employees would be losing their jobs, but that the he was not going toallow the restaurants to open. In that conversation he falsely asserted that the Plaintiff had “not done crap” to comply with Building Code.
 
VERIFIED COMPLAINT AND MOTION Page 3 of 2
14. On January 7, 2013, the Plaintiff, through counsel, attempted to file aBoard of Appeal Application (the “Application”) with Denver Development Servicespursuant to the Denver Building Code appealing the January 4, 2013 Order to Vacate.15. A true and correct copy of the Board of Appeal Application is attachedhereto as Exhibit 3.16. An office administrative person for the Defendants immediately flaggedthe attempted filing based on the Property’s address and disappeared into the offices tocontact Defendant Roach.17. After some time, she eventually announced that Defendant Roach hadinstructed her not to accept the filing and rejected the same.18. Counsel for the Plaintiff then addressed the matter with the AssistantDenver City Attorney who conceded that Defendant Roach did not have the authority torefuse the Application.19. Through counsel, the Application was accepted back-dated to the originaldate of filing on January 7, 2013. A true and correct copy of the verification email fromthe City Attorney is attached as Exhibit 4.20. Defendant Development Services and Board of Appeals accepted thefiling with the elevated $500 fee for an emergency hearing before the Board of Appeals.21. Pursuant to Section 109.4 of the Denver Building Code, “In any matter inwhich an order or notice relating to an unsafe building or structure is appealed, theBuilding Official may certify to the Board that the building or structure could become animminent hazard, in which case the Board shall schedule a meeting within 3 work daysto hear said appeal.”22. In ruling that the building was unsafe, Defendant Roach based hisdecision in whole or in part on allegations that the structure could not meet wind loadrequirements and was in danger of collapse.23. Correspondence from the City’s attorney indicates that Defendant Roachhas, in fact, determined the structure on the Property is an imminent threat. A true andcorrect copy of that correspondence is attached as Exhibit 5.24. The Defendants have never taken any other action to restrict use of adjacent sidewalks or to vacate neighboring buildings, as would be consistent if Defendant Roach actually had evidence that the four-story brick building were inimminent danger of collapse.

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Linda B. Fisher added this note
Sure makes me proud of the way City officials operate! (not!)

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