Case 1:06-cv REB-BNB Document 45 Filed 08/03/2006 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 06-cv-00554-REB-BNB ROCKY MOUNTAIN CHRISTIAN CHURCH, a Colorado nonprofit corporation, ALAN AHLGRIM, Lead Pastor, DONALD BONDESON, Discipleship Pastor, BARB EVANS, Director of Women s Ministry, and DAVID PAGE, Elder, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO Defendant. ANSWER TO FIRST THREE CLAIMS FOR RELIEF IN AMENDED COMPLAINT Defendant Board of County Commissioners of Boulder County, Colorado (the County ) answers Plaintiffs first three claims for relief in the Amended Complaint as follows: Objection and Reservation of Rights The County is filing this Answer to First Three Claims for Relief in Amended Complaint ( Answer ) based upon the minute order issued by Magistrate Judge Boland on July 18, 2006, requiring the County to answer all claims not subject to a motion to dismiss under 12(b) by August 7, 2006. All claims in this case should be dismissed under Fed. R. Civ. P. 12(b). Specifically, in its Motion to Dismiss Amended Complaint, the County requested that the Court dismiss all of Plaintiffs federal claims and the state

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 2 of 29 law inverse condemnation claim. Further, the County asked that the Court decline to exercise jurisdiction over the remaining state law claims. This court will lack jurisdiction over Plaintiffs first three claims for relief if the federal claims are dismissed, and therefore those claims are subject to a Fed. R. Civ. P. 12(b)(1) motion. If the Court does not dismiss all of the federal claims, it could still decline to exercise pendent jurisdiction over the state law claims and remand those claims. The County believes that this entire action remains subject to dismissal and this answer should not be construed as an admission to the contrary. Nonetheless, Magistrate Judge Boland indicated in the July 18, 2006 scheduling conference that the County was required to file an answer to Plaintiffs first three claims for relief. This answer is only a partial answer to the claims made in the Amended Complaint. The County reserves the right to file an additional answer to Plaintiffs remaining claims for relief if the Court should deny, in whole or in part, the County s Motion to Dismiss Amended Complaint. The County reserves the right to raise all defenses, including affirmative defenses, that are available to the County in that additional answer. Answer to Allegations in the Amended Complaint 1. The County admits the allegations in paragraph 1 of the Amended Complaint. 2. The County has insufficient information about the allegations in paragraph 2 of the Amended Complaint and therefore denies them. 3. The County admits the allegation in paragraph 3. 2

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 3 of 29 4. The County denies that RMCC s articles of incorporation were filed with the Colorado Secretary of State on February 28, 1984. The County admits the remaining allegations in paragraph 4. 5. The County admits that a copy of the Bylaws of the Church are attached to the Amended Complaint and labeled as Exhibit A. The County admits that the Bylaws attached as Exhibit A state, among other things, that the primary purpose of the Church is to exalt Jesus Christ, impacting Boulder County and beyond, by bringing people to Christ, building them up in the faith, and sending them out to make a difference in their world. The County has insufficient information about the remaining allegations in paragraph 5 and therefore denies them. 6. The County admits the allegations in paragraph 6. 7. The County admits that the Church and its congregation engage in certain religious practices and that these religious practices include worship, fellowship, ministry, and evangelism. The County has insufficient information about the remaining allegations in paragraph 7 and therefore denies them. 8. The County admits that Rocky Mountain Christian Academy is a Colorado nonprofit corporation which operates at 380-student school on the Property serving kindergarten through the eighth grade. The County admits that the Church s facilities allow for dual use by the Christian Academy and the Church. The County has insufficient information about the remaining allegations in paragraph 8 and therefore denies them. 9. The County denies the allegations in paragraph 9. 3

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 4 of 29 10. The County denies the allegations in paragraph 10. 11. The County denies the allegations in paragraph 11. 12. The County denies the allegations in paragraph 12. 13. The County denies the allegations in paragraph 13. 14. The County denies the allegations in paragraph 14. 15. The County admits that the gym can accommodate fellowship events for groups of between 100 to 300 people. The County has insufficient information about whether fellowship is one of the core reasons that people join a church or whether nearly all churches contain fellowship hall space to accommodate the gathering of at least half of their church s congregation. The County denies the remaining allegations in paragraph 15. 16. The County denies the allegations in paragraph 16. 17. The County admits the term evangelism is derived from the Greek word for good news. The County has insufficient information about whether the word evangelism involves outreach to nonmembers and therefore denies it. The County admits that the Church allows community groups to use the Church facilities for meetings and banquets. The County denies the remaining allegations in paragraph 17. 18. The County admits that the Church requested permission to enlarge the facilities on the Property by filing a Special Use Amendment Application, Docket No. SU-04-008. The County admits that the Church desired to engage in, among other things, religious practice in the proposed enlarged facilities. The County denies the remaining allegations in paragraph 18. 4

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 5 of 29 19. The County denies the allegations in paragraph 19. 20. The County admits that County regulations did not require the Church to hold neighborhood meetings. The County has insufficient information about whether the Church held seven Niwot neighborhood meetings, five additional meetings with representatives of the adjacent Quiet Retreat subdivision, and three meetings with representatives of the Niwot Community Association, as well as having Church representatives attend monthly meetings of both the Niwot Community Association and Niwot Business Association and therefore denies it. The County denies the remaining allegations in paragraph 20. 21. The County admits that the Church modified its original application by eliminating a proposed 12,000 square-foot balcony addition to its sanctuary, thereby reducing additional seating in the sanctuary from 1000 to 150 and by eliminating a proposed 8000 square foot basement addition. The County admits that the Church modified its application to remove the request to increase the student population of Rocky Mountain Christian Academy from 380 students to 540 students. The County admits that the Church modified its application to reduce the western parking lot nearest to Quiet Retreat by 360 spaces and to lower the parking lot by ten feet. The County admits that the application included proposals to increase the berm heights, block the use of the western parking lots during non-peak hours, limit lighting of parking lots only to those in use during evening activities, increase the buffer zone on the western side of the property by 25 feet, and relocate sports fields away from the Quiet Retreat subdivision. The County denies the remaining allegations in paragraph 21. 5

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 6 of 29 22. The County admits that the Church responded to requests for information by the Board and other County staff. The County admits that it requested an explanation of how the proposed facility would be used by the Church and members of the congregation. The County denies the remaining allegations in paragraph 22. 23. The County denies the allegations in paragraph 23. 24. The County admits that it denied portions of the Application. The County admits that it directed the County Attorney to file a declaratory judgment action in federal court asking the federal court to affirm that the County s decision did not violate RLUIPA. The County denies the remaining allegations in paragraph 24. 25. The County admits the allegations in paragraph 25. 26. The County denies that this Court has jurisdiction over all state law claims. The County s position on this Court s jurisdiction over the federal claims is stated in the County s Motion to Dismiss Amended Complaint. 27. The County admits the allegations in paragraph 27. 28. The County admits the allegations in paragraph 28. 29. The County admits that Pastor Ahigrim is the Lead Pastor of the Church, that Article VI, Section 8 of the Bylaws attached to the Amended Complaint describe the duties of the Senior Minister and include responsibility for the general supervision of programs and staff of the Church in cooperation and under the guidance of the Board of Elders. The County admits that Pastor Ahigrim s duties include preparing and delivering sermons. The County has insufficient information related to the remaining allegations in paragraph 29 and therefore denies them. 6

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 7 of 29 30. The County has insufficient information about the allegations in paragraph 30 and therefore denies them. 31. The County has insufficient information about the allegations in paragraph 31 and therefore denies them. 32. The County admits that the responsibilities of the members of the Board of Elders are set forth in Article V of the Bylaws that were attached to the Amended Complaint and are based on the biblical passages cited in Article V. The County has insufficient information about the remaining allegations in paragraph 32 and therefore denies them. 33. The County admits the allegations in paragraph 33. 34. The County admits the allegations in paragraph 34. 35. The County has insufficient information about the allegations in paragraph 35 and therefore denies them. 36. The County has insufficient information about the allegations in paragraph 36 and therefore denies them. 37. The County has insufficient information about the allegations in paragraph 37 and therefore denies them. 38. The County has insufficient information about the allegations in paragraph 38 and therefore denies them. 39. The County has insufficient information about the allegations in paragraph 39 and therefore denies them. 7

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 8 of 29 40. The County has insufficient information about the allegations in paragraph 40 and therefore denies them. 41. The County admits the allegations in paragraph 41. 42. The County admits that the two largest cities in Boulder County are the City of Boulder and the City of Longmont. The County admits that the United States Census Bureau lists the City of Boulder and the City of Longmont as urbanized, as that term is defined by the Census Bureau. The County admits that the distance from downtown City of Boulder to downtown Longmont is approximately 12 to 13 miles. The County admits that Highway 119, commonly known as the Longmont Diagonal, allows for travel between the City of Boulder and Longmont. The County admits that the Regional Transportation District is in the planning process for the proposed Longmont Diagonal Rail, which includes a corridor of approximately 13 miles between the City of Boulder and Longmont. The County denies the remaining allegations in paragraph 42. 43. The County admits that the Town of Niwot is an unincorporated community within Boulder County located about nine miles outside the City of Boulder and about three miles outside of the City Longmont. The County admits that Niwot is identified as a Census Designated Place in the 2000 Census. The County denies the remaining allegations in paragraph 43. 44. The County admits that the Property is within the mapped area of the census designed place known as Niwot according to the 2000 Census map. The County denies the remaining allegations in paragraph 44. 8

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 9 of 29 45. The County admits that the 2000 U.S. Census states that zero percent of the residents of the employed civilian population age 16 and over in Niwot were listed under the category of farming, fishing, and forestry occupations. The County denies the remaining allegations in paragraph 45. 46. The County admits that, according to the U.S. Census, between 1990 and 2000 the City of Boulder s population grew by 13.6% from 83,312 to 94,673, and the City of Longmont s population grew by 37.9% from 51,555 to 71,093. The County admits that the U.S. Census indicated that the population of Niwot in 2000 was 4,160. The County denies the remaining allegations in paragraph 46. 47. The County admits the allegations in paragraph 47. 48. The County denies that the Church or the Town of Niwot are part of an urban area. The County admits that the Property and the Town of Niwot are within the area classified by the Census Bureau as the Boulder-Longmont PMSA. The County has insufficient information about the remaining allegations in paragraph 48 of the Amended Complaint and therefore denies them. 49. The County admits the allegations in paragraph 49. 50. The County admits that the Director of the County s Land Use Department has stated that, in his opinion, Niwot High School is an urban land use. The County denies the remaining allegations in paragraph 50. 51. The County admits that the Church is used as a meeting place for certain events. The County has insufficient information about the allegations in paragraph 51 and therefore denies them. 9

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 10 of 29 52. The County admits the Church s religious practices require the use of buildings and space, but denies that the Church s religious practices require that the buildings and space be on a single property, e.g., the Property, or that congregations of unlimited size and expected growth be accommodated in a specific building or location. The County admits that the five religious practices constitute the exercise of religion, speech, and other expressive conduct. The County has insufficient information about the remaining allegations in paragraph 52 and therefore denies them. 53. The County admits the Church conducts the religious exercise of worship, that the Church members participate in group worship, that members engage in activities such as singing, praying, and listening to sermons. The County admits that the Church has separate worship spaces for adults, teens, and children. The County has insufficient information about the remaining allegations in paragraph 53 and therefore denies them. 54. The County has insufficient information about the allegations in paragraph 54 and therefore denies them. 55. The County admits that the Church maintains programs such as the Rocky Mountain Christian Academy, children s and adult Sunday School and support groups. The County admits that portions of the Church s facilities are used for Christian education programs. The County has insufficient information about the remaining allegations in paragraph 55 and therefore denies them. 56. The County admits that the Church provides services such as counseling, weddings, funerals, and support for the poor. The County admits that the Church 10

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 11 of 29 provides programs to provide services to members within the Church and to nonmembers outside of the Church, including sports ministries, youth programs, missions projects, and other programs. The County admits that small groups meet in the Church. The County has insufficient information about the remaining allegations in paragraph 56 of the Amended Complaint and therefore denies them. 57. The County has insufficient information about the allegations in paragraph 57 and therefore denies them. 58. The County admits that the Church acquired the Property. The County admits that the Property was acquired by the Church in three separate acquisitions, the first of approximately 15 acres in 1985, a second of approximately 35 acres in 1994, and a third of approximately five acres in 2004. The County has insufficient information about the remaining allegations in paragraph 58 and therefore denies them.. 59. The County admits the allegations in paragraph 59. 60. The County admits that prior to the splitting of the First Parcel from a larger parcel of property, the First Parcel was designated in the County Comprehensive Plan as Agricultural Lands of National Significance and that portion of the property is so designated as of the date of this Answer. The County denies the remaining allegations in paragraph 60. 61. The County admits the allegations in paragraph 61. 62. The County admits the Church acquired the Property. The County denies that the Church initially acquired a single property of more than 50 acres. The County admits that N. 95th Street is classified as a minor arterial road. The County denies that 11

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 12 of 29 The County has insufficient information about the remaining allegations in paragraph 62 and therefore denies them. 63. The County has insufficient information about the allegations in paragraph 63 and therefore denies them. 64. The County admits that a church was a use by right in the Agricultural Zone District prior to October 10, 1994. The County denies the remaining allegations in paragraph 64. 65. The County admits that, by 1996, the Church had constructed a building in excess of 50,000 square feet. The County has insufficient information about the remaining allegations in paragraph 65 of the Amended Complaint and therefore denies them. 66. The County admits the allegations in paragraph 66 of the Amended Complaint. 67. The County admits that Boulder Valley Christian Church developed a church in Boulder County located at 68th and South Boulder Road, west of Louisville. The County denies that the Boulder Valley Christian Church was the first large new church in Boulder County. The County has insufficient information about the remaining allegations in paragraph 67 of the Amended Complaint and therefore denies them. 68. The County admits that all uses, including but not limited to church uses, with an occupancy load of more than 100 cannot be developed in any zone district in unincorporated Boulder County without special use review by the County. The County denies the remaining allegations in paragraph 68. 12

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 13 of 29 69. The County admits that all uses, including but not limited to church uses, with an occupancy load of more than 100 cannot be developed in any zone district in unincorporated Boulder County without special use review by the County. The County denies the remaining allegations in paragraph 69. 70. The County admits that the effect of its regulations was that all new uses, including but not limited to church uses, with an occupancy load of more than 100, cannot be developed in any zone district in unincorporated Boulder County without special use review by the County. The County admits that special use review is a review process through which the Board exercises discretion that is limited by specific standards that protect against arbitrary action, ensure that the County s decisions over time will be rational and consistent, put landowners on notice that such factors are considered in development approval, and enable courts to conduct meaningful judicial review. The County denies the remaining allegations in paragraph 70. 71. The County admits that the procedure for special use review involves public hearings before the County Planning Commission and the Board. The County denies that the special review process is lengthy and expensive. 72. The County admits the allegations in paragraph 72. 73. The County admits that the next step is for the applicant to submit an application. The County admits that the application submittal requirements are set forth in part in Article 3-202 of the Code. The County denies the remaining allegations in paragraph 73. 74. The County admits the allegations in paragraph 74. 13

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 14 of 29 75. The County admits the allegations in paragraph 75. 76. The County admits that a public hearing is held before the Board. The County admits that the Board s options include, but are not limited to, approving or denying the application. The County denies the remaining allegations in paragraph 76. 77. The County admits that some of the County s review criteria for special use review are set forth in Article 4-601 of the Code. The County denies the remaining allegations in paragraph 77. 78. The County denies the allegations in paragraph 78. 79. The County admits that the special use criteria require that the proposed use be in accordance with the Boulder Comprehensive Plan. The County admits that the Comprehensive Plan states, among other things, that it is advisory in nature and that it provides guidance in the decision-making process, but not the final word. The County denies the remaining allegations in paragraph 79. 80. The County admits that whether a proposed use is located on lands designated as Agricultural Lands of National Significance is a factor considered by the Board in making decisions on particular applications. The County denies the remaining allegations in paragraph 80. 81. The County admits that it has approved residential uses on Agricultural Lands of National Significance. The County denies the remaining allegations in paragraph 81. 82. The County admits that Section 4-602(E) provides a special use review process to allow certain nonconforming uses to become conforming uses. The County 14

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 15 of 29 denies that 4-602(E) authorizes an exemption. The County denies the remaining allegations in paragraph 82. 83. The County denies the allegations in paragraph 83. 84. The County denies the allegations in paragraph 84. 85. The County admits that the Church was a nonconforming use between 1994 and 1998. The County denies the remaining allegations in paragraph 85. 86. The County admits that in 1997, the Church filed an application for special use, docketed by the County as Docket No. SU-97-12 for the purpose of, among other things, making the Church use a conforming use, as opposed to a legal non-conforming use, and to expand the Church. The County denies the remaining allegations in paragraph 87. 87. The County admits the allegations in paragraph 87. 88. The County admits the allegations in paragraph 88. 89. The County admits that County land use staff, in connection with the Board hearing on the 1997 Application, found that the application did not satisfy a number of the criteria set forth in Section 4-601 of the Code and that those conclusions were reflected in a report submitted to the Board. The County admits that the 1997 staff report reflected land use staff s determinations that the 1997 Application was not compatible with the surrounding area, was inconsistent with the Comprehensive Plan because, among other things, the subject property was designated within the Comprehensive plan as Agricultural Lands of National Importance and was within the 15

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 16 of 29 Niwot Buffer Zone, and would result in an over-intensive use of the land. The County denies the remaining allegations in paragraph 89. 90. The County admits that it conditionally approved the 1997 application as set forth in Resolution No. 98-30. The County denies the remaining allegations in paragraph 90. 91. The County admits the allegations in paragraph 91. 92. The County admits that some of the plans submitted on behalf of the Church to the Land Use Department after the Board passed Resolution 98-30 contain the words Future Building Site or Future Building Site Subject to County Review. The County denies that the site plan submitted to the Board as a part of the application contained such language or that the Board in any way approved this property description in Resolution 98-30. The County denies the remaining allegations in the in paragraph 92. 93. The County admits that two further special use approvals were granted by the County under Docket No. SU-00-21, which authorized increasing the size of the Church storage building by 1,600 square feet and the addition of a sixth grade to the school, and under Docket No. SU-02-08, which authorized addition of seventh and eighth grades, with up to a maximum of 120 students, and installation of a temporary middle school building to serve those grades. The County admits that the County s land use staff recommended denial of Docket No. SU-02-08. The County denies the remaining allegations in paragraph 93. 94. The County admits that Resolution No. 2003-54 was initially mistakenly numbered as Resolution No. 2003-59. The County admits that the approval included a 16

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 17 of 29 condition that the temporary modular unit be removed from the Property within three months from the end of the 2005-2006 school year. The County admits that Resolution No. 2003-54 stated [t]his approval does not provide any reliance to the Applicant that any future application submitted to Boulder County for review will receive approval from Boulder County. The County denies the remaining allegations in paragraph 94. 95. The County denies the allegations in paragraph 95. 96. The County admits that, at the time the Application was filed in April of 2004, the approved uses of the Property included a church with a 1,380-seat facility, a preschool for 20 children, a Mom s Day Out program for a maximum of 40 children, and the Rocky Mountain Christian Academy for kindergarten through eighth grades with a maximum of 380 students. The County admits that those uses are currently permitted in addition to the uses permitted by Resolution 2006-23. The County denies the remaining allegations in paragraph 96. 97. The County admits that, at the time of the application and as of the date of this Answer, the improvements on the Property include an approximately 106,000 square foot building including, among other things, a sanctuary, classrooms, meeting space, a gym, a 2600 square foot maintenance building, and a 7,200 square foot modular unit for the Christian Academy. The County denies the remaining allegations in paragraph 97. 98. The County admits that the application states that the proposal represents the maximum buildout of this site as was referred to on the 1998 Special Use Amendment site plan as noted in the 2003 approval of the temporary modular for the 17

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 18 of 29 middle school. The County denies that a maximum buildout was applied for or approved in 1998. The County has insufficient information about the remaining allegations in paragraph 98 and therefore denies them. 99. The County admits that the Church made efforts to comply with the concerns of the community and the County staff by making modifications to the Application described above. The County denies the remaining allegations in paragraph 99. 100. The County has insufficient information about the allegations in paragraph 100 and therefore denies them 101. The County denies it violated RLUIPA and/or other applicable law. The County has insufficient information on the remaining allegations in paragraph 101 and therefore denies them. 102. The County has insufficient information on the allegations in paragraph 102 and therefore denies them. 103. The County admits that the Application was submitted to the Boulder County Land Use Department on April 14, 2004. The County admits that one of RMCC s revisions to the Application took place on October 6, 2004. The County denies the remaining allegations in paragraph 103. 104. The County admits the allegations in paragraph 104. 105. The County admits that November 26, 2004, was the day after the 2004 Thanksgiving Holiday. The County admits that the Church received a revised staff report on November 26, 2004. The County denies the remaining allegations in paragraph 105. 18

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 19 of 29 106. The County admits that the Niwot Community Service Area Map is part of the Comprehensive Plan. The County admits that the Property is labeled as a Public/Quasi-Public Facility on the Niwot Community Service Area Map. The County admits that Niwot High School is labeled as a Public/Quasi-Public Facility on the Niwot Community Service Area Map. The County denies the remaining allegations in paragraph 106. 107. The County admits that the Church requested that the hearing before the Board be tabled and that the request was granted. The County denies the remaining allegations in paragraph 107. 108. The County admits that the Church s representatives had discussions with the Land Use Staff. The County admits that a public hearing before the Board on the Application was scheduled for November 7, 2005. The County denies the remaining allegations in paragraph 108. 109. The County denies the allegations in paragraph 109. 110. The County admits that the County land use staff recommended denial of the Application at the November 7, 2005, hearing. The County admits that County land use staff recommended denial of some of the Church s prior applications. The County denies the remaining allegations in paragraph 110. 111. The County denies the allegations in paragraph 111. 112. The County admits that, at the close of the November 7, 2005, hearing, the County continued the hearing and requested more detail on the use of space within the proposed buildings. The County denies the remaining allegations in paragraph 112. 19

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 20 of 29 113. The County denies the allegations in paragraph 113. 114. The County admits that, by letter dated November 18, 2005, the Church s representatives provided additional information to the County in response to the County s request. The County admits that the November 18, 2005 letter submitted by the Church is approximately eight pages in length, accompanied by six exhibits, and generally describes how the proposed expansion was to be used. The County admits the Exhibit E and F to the November 18 letter are a plan of the Church building, including the proposed expansion, color coded to show the uses to be conducted in each area of the Church building and an appendix explaining the color codes. The County denies the remaining allegations in paragraph 114. 115. The County has insufficient information to admit or deny the allegations in paragraph 115 and therefore denies them. 116. The County admits the allegations in paragraph 116. 117. The County admits the allegations in paragraph 117. 118. The County denies the allegations in paragraph 118. 119. The County admits that, by voice vote on February 2, 2006, the Board denied most aspects of the application but approved two aspects of the application: an increase in the seating capacity in the sanctuary from 1,400 to 1,550 seats with no associated increase in square footage, and the construction of up to 10,000 square feet of permanent floor area to replace the 7,200 square feet of temporary modular buildings. The County denies the remaining allegations in paragraph 119. 20

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 21 of 29 120. The County admits that on February 21, 2006, the BOCC adopted Resolution No. 2006-23 which set forth in detail the decision announced at the February 2, 2006 hearing. The County admits that a copy is attached to the Amended Complaint as Exhibit B. The County denies the remaining allegations in paragraph 120. 121. The County admits that in Resolution No. 2006-23, the County stated in part that the Board finds and believes that the denial of the Docket does not impose a substantial burden on the Church s or its members or attendees exercise of religion contrary to the federal Religious Land Use and Institutionalized Persons Act. The County admits that Resolution No. 2006-23 also stated in part that the Board recognizes that it is not the final or even appropriate arbiter of the applicability of the federal Religious Land Use and Institutionalized Persons Act to its decision on the docket, and determines that it is prudent and justified to authorize the County Attorney to file a declaratory judgment action in Federal District Court to confirm whether the Board s decision on the Docket complies with the mandates of this Act. The County denies the remaining allegations in paragraph 121. 122. The County admits the General Assembly delegated authority to counties to adopt zoning regulations and that part of such delegation is contained in Part 1 of Article 28 of Title 30, Colo. Rev. Stat. The County denies the remaining allegations in paragraph 122. 123. The County admits that certain requirements with respect to a county s exercise of zoning power, including requirements related to certification of a zoning 21

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 22 of 29 plan, are set forth in Part 1 of Article 28 of Title 30, Colo.Rev.Stat. The County denies the remaining allegations in paragraph 123. 124. The County admits that portions of the Code, including the County s zoning map, constitutes the County s zoning resolution. The County denies the remaining allegations in paragraph 124. 125. The County admits that the Board s procedures and duties with respect to an application for approval of a special use are set forth in part in Article 3 of the Code. The County admits that Article 3 of the Code does not make reference to the Board suing an applicant in federal court. The County denies that the County was not authorized to file the declaratory judgment action against RMCC. The County denies the remaining allegations in paragraph 125. 126. The County denies that the County acted outside of its authority. The County denies the allegations in paragraph 126. 127. The County admits that its partial denial of the Application was on the grounds set forth in Resolution No. 2006-23. The County denies the remaining allegations in paragraph 127. 128. The County admits that the County land use staff recommended denial of the 1997 application. The County denies the remaining allegations in paragraph 128. 129. The County denies that the County staff has a practice of recommending denial of applications based upon subjective criteria. The County denies it has Exemption Policies and Practices. The County denies that the Board is vested with unbridled discretion to approve or deny an application. The County admits that special 22

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 23 of 29 use review is a review process through which the Board exercises discretion that is limited by specific standards that protect against arbitrary action, ensure that the County s decisions over time will be rational and consistent, put landowners on notice that such factors are considered in development approval, and enable courts to conduct meaningful judicial review. The County admits that, as specified under Colo. R. Civ. P. 106(a)(4), a court may vacate and remand a decision of the Board if it is not supported by competent evidence in the Record. The County admits that the staff report, among other things, constitutes competent evidence in the Record to support the County s decision on the Application. The County denies that RMCC s application provided sufficient evidence to uphold an approval of the Application. The County denies the remaining allegations in paragraph 129. 130. The County admits that the Board grated a special use application by the Boulder County Parks and Open Space Department for an Agricultural Heritage Center west of Longmont. The County admits that the Agricultural Heritage Center was in an Agricultural Zone District and partially on Agricultural Lands of National Significance. The County admits that the Board approved a special use application for the modification and use of the historic Goodhue farmhouse for limited meeting center use. The County admits that the farmhouse was in an Agricultural Zone District and on Agricultural Lands of National Significance. The County admits that it approved a special use application by the Alexander Dawson School, a secular private school, for a gymnasium for its students. The County admits that the school was located in the Agricultural Zone District and partially on Agricultural Lands of National Importance. The 23

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 24 of 29 County has insufficient information related to the approval of other secular private schools and therefore denies the remaining allegations related to that issue. The County admits that the Church s Application included a proposal for an additional gymnasium. The County admits that it approved portions of the application because they met the applicable criteria for special review. The County admits it has approved other development within the Niwot Buffer Zone and on Agricultural Land of National Significance. The County denies the remaining allegations in paragraph 130. 131. The County denies the allegations in paragraph 131. 132. The County has insufficient information about the allegations related to Church programs such as Women in the Word and adult Sunday School and therefore denies them. The County denies the remaining allegations in paragraph 132. 133. The County denies the allegations in paragraph 133. 134. The County denies the allegations in paragraph 134. 135. The County denies the allegations in paragraph 135. 136. The County denies the allegations in paragraph 136. 137. The County denies the allegations in paragraph 137. 138. The County admits that the Church could not seek a variance from the Board of Adjustment that would alter the Board s decision on the Application. The County denies the remaining allegations in paragraph 138. 139. The County admits that the Board identified portions of the application that met the criteria for special review. The County denies the remaining allegations in paragraph 139. 24

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 25 of 29 140. The County admits that, in accordance with Colo. R. Civ. P. 106(a)(4), a Colorado court may vacate and remand the Board s decision. The County denies the remaining allegations in paragraph 140. 141. The County admits that the Board, in its decision on the Application, directed the County Attorney to file a declaratory judgment action in federal court. The County denies the remaining allegations in paragraph 141. 142. The County admits that, on March 17, 2006, it filed a declaratory judgment action in the United States District Court for the District of Colorado labeled Civil Action No. 06-cv-00486 requesting, among other things, declaratory judgment that the decision on the Application did not violate RLUIPA. The County denies that the lawsuit was retaliatory. The County denies that the County alleged that the Board made compromise offers to the Church. The County denies that it took any action contrary to the factual allegations in the declaratory judgment lawsuit. 143. The County admits the allegations in paragraph 143. 144. To the extent that an admission or denial is required, the County denies the allegations in paragraph 144. 145. To the extent that an admission or denial is required, the County denies the allegations in paragraph 145. 146. To the extent that an admission or denial is required, the County denies the allegations in paragraph 146. 147. The County responds to the allegations in paragraph 147 as stated above. 25

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 26 of 29 148. The County admits that its decision on the Application would be characterized as a quasi-judicial decision under Colorado law because the decision was non-legislative, limited in its scope, and subject to review under Colo. R. Civ. P. 106(a)(4). The County denies the remaining allegations in paragraph 148. 149. The County admits that, under the circumstances set forth in Colo. R. Civ. P. 106(a)(4), a party may obtain relief as specified under that rule. The County denies the remaining allegations in paragraph 149. 150. The County denies the allegations in paragraph 150. 151. The County admits that the Church is entitled to review under Colo. R. Civ. P. 106(a)(4) in Colorado state court. The County denies the allegations in paragraph 151. 152. The County responds to the allegations in paragraph 152 as stated above. 153. The County admits that, under the circumstances set forth in Colo. R. Civ. P. 106(a)(4), a party may obtain relief as specified under that rule. The County denies the remaining allegations in paragraph 153. 154. The County denies the allegations in paragraph 154. 155. The County admits that the Church is entitled to review under Colo. R. Civ. P. 106(a)(4) in Colorado state court. The County denies the remaining allegations in paragraph 155. 156. The County response to the allegations in paragraph 156 as stated above. 157. The County admits that the General Assembly may delegate its authority in a manner that is consistent with the laws of the State of Colorado, the Colorado 26

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 27 of 29 Constitution, and the United States Constitution. The County denies the remaining allegation in paragraph 157. 158. The County denies the allegations in paragraph 158. 159. The County denies the allegations in paragraph 159. 160. The County denies that the County s regulations governing special use review are an impermissible delegation of legislative authority. The County denies that the County regulations cannot be enforced against the Church to deny the application. 161. The County denies the allegations in paragraph 116. 162. Any allegation in paragraphs 1 through 161 of the Amended Complaint requiring and admission or a denial that is not specifically admitted or denied above is denied. As stated above, the County asserts that is it not required to answer any of the allegations in paragraph 162 through 265 because of the pending Motion to Dismiss Amended Complaint. 163. As an affirmative defense, the County asserts that this court lacks jurisdiction over RMCC s first three claims for relief in the absence of a cognizable federal claim. In the alternative, RMCC s first three claims for relief should be remanded to state court for a decision on those claims. The County further asserts that RMCC s third claim for relief fails to state a claim upon which relief can be granted. 27

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 28 of 29 Respectfully submitted on this 31st day of July, 2006. BOULDER COUNTY ATTORNEY By: s/ David Hughes David Hughes Deputy County Attorney Pat A. Mayne Deputy County Attorney P.O. Box 471 Boulder, CO 80306 Telephone: (303) 441-3190 Fax: (303) 441-4794 E-mail: dhughes@co.boulder.co.us Marci A. Hamilton, Esq. 36 Timber Knoll Drive Washington Crossing, PA 18977 (215) 353-8984 ATTORNEYS FOR DEFENDANTS, BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY 28

Case 1:06-cv-00554-REB-BNB Document 45 Filed 08/03/2006 Page 29 of 29 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 3rd day of August, 2006, I electronically filed with the Clerk of the Court the foregoing Answer to First Three Claims for Relief in Amended Complaint using the CM/ECF system which will send notification of such filing to the following e-mail addresses: tjr@ottenjohnson.com waas@ottenjohnson.com mac@ottenjohnson.com amy@ottenjohnson.com peter.bryce@usdoj.gov s/kathy G. Nelson Kathy G. Nelson 29