Chiropractor's suit against city fails

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— A federal court judge in Denver has dismissed the civil rights suit filed by Steamboat Springs chiropractor David Criste against the city of Steamboat Springs.

Criste sought unspecified damages from the city, alleging his civil rights had been abridged when the city halted construction of his building at 434 Oak St. in August 1996.

Steamboat Springs chiropractor David Criste first submitted an application for a development permit to allow a second-story addition to his building on Oak Street on March 31, 1993. The permit was subsequently approved. Criste later learned from his contractors that to add a second story on his building, he would need to add six steel support columns around the outside of the existing building. He submitted his application for a building permit in May 1995. Criste's attorney, Edward Serr, acknowledges Criste "was aware that the steel design encroached further into the setbacks than did the original structure," and he did not seek to amend his development permit to allow the further encroachment into the side setbacks in 1995. However, Criste and his attorney say his construction drawings, reflecting the change, were submitted to city planning as a normal part of the building permit process, and signed off on by city planning staff. Criste had his concrete foundation poured in late 1995 and the steel frame was in the process of being erected in August 1996. Later in the same month, the city asked the building department to issue a "cessation order." Discussions ensued and the stop work order was lifted on Aug. 23, 1996. Criste had agreed to seek revisions to his development permit, a process that stretched into March 1997, when the petition was denied by the City Council. Criste filed suit seeking $1.1 million in damages, but the Colorado State court ruled in favor of the city, saying Criste had not exhausted his administrative remedies because he had not requested the city grant a variance for his building. Criste went through the variance process and was again denied. Attempts to settle the suit late in the autumn of 1999 weren't productive. Subsequently, the two sides went to a bench trial before District Judge Richard Doucette in late May. Both the city and Criste were seeking injunctions against one another. The city sought to have the building brought in compliance with its setback regulations, which would have meant tearing the building down. Criste sought to have the city blocked from taking that action. City Attorney Tony Lettunich argued before the court that the city's action in signing off on the building permits was based on incorrect documents submitted by Criste. Doucette found in favor of Criste and and chastised the city for its actions. "The city darn well knew, or should have known, the building as proposed encroached further into the setback," Doucette said. He called the city's insistence on looking at the fine print in its code, rather than focusing on the "large print," contrary to fair practices. "The court finds that very strange," Doucette said. Criste did not seek monetary damages during the trial in May. He and his attorney felt those aims would be better served by a civil rights case in federal court. Barring a successful appeal, they lost that battle this month.

However, Judge Clarence A. Brimmer issued a ruling last week that said in essence Criste and attorney Edward Serr missed their chance to seek damages from the city last May.

Criste won a judgment after a bench trial before District Court Judge Richard Doucette here May 31. Doucette's ruling required the city to issue Criste a certificate of occupancy for his building where he lives and works today. It also prevented the city from requiring Criste to tear the building down to make it conform to city side setback ordinances.

Brimmer ruled the victory Criste won in court earlier this year precluded him from seeking damages in federal court. The judge ruled that, by law, a plaintiff who won "declaratory" and "coercive" relief in a state court was barred by law from seeking monetary damages in federal court.

"Because the plaintiff sought both coercive and declaratory relief in the previous state action, he is now barred from pursuing his claims in this court," Brimmer ruled.

Last week's ruling in federal court left Doucette's ruling intact but meant Criste will likely have to undergo a lengthy and costly appeal process if he hopes to ever receive any monetary damages to offset legal costs and expenses related to construction delays.

Steamboat Springs City Attorney Tony Lettunich said in a written press release Monday that he had anticipated Brimmer's ruling.

"We are pleased with the judge's decision, but not surprised," Lettunich said. "Both the facts and the law clearly compelled dismissal of this suit. The only action the city took was to enforce its laws."

Criste said he still takes strength from Doucette's ruling and the fact that Brimmer did not rule on the merits of his suit but on what he called a legal technicality.

"Although it's a big disappointment to have this suit dismissed, keeping my house is a substantially victory," Criste said. "Although it would be nice to have some damages. The city set out to cost me a lot of money and they achieved that objective."

Serr said he was still trying to understand the court's reasoning on Monday.

"I've had better days," Serr said. "Right now, I'm not sure what we're going to do."

Asked if he regretted not seeking monetary damages last spring when he was in front of a sympathetic judge, Serr said: "Given the order in front of me, I'd rather have been in front of the other judge. I'd have to be an idiot not to say 'yes.'"

Criste said Monday he was uncertain whether to undertake the expense of appealing Brimmer's dismissal. He said he has not resumed construction on his building since last May, largely for financial reasons.

"The appeals process could be very lengthy and very expensive," Criste said. "We definitely feel like the judge erred in his opinion. I came out way ahead by getting to keep my house. It has cost me a ton of money and the city had no case against me, ever. The federal judge has not ruled on the merits of the case he threw it out on a technicality."

To reach Tom Ross call 871-4210 or e-mail tomross@amigo.net

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