Second homeowners drop lawsuit against county and Reynolds

“A waste of taxpayer dollars…”

by Mark Reaman

The Gunnison County attorney’s office received word last week that the second homeowners suing the county and Public Health director Joni Reynolds over the spring prohibition of second homeowners coming to their property have dropped their lawsuit.

A brief notice from the U.S. District Court stated that a voluntary dismissal of the suit was announced Friday, June 5. “Plaintiffs the Cillessen Trust, James A. Cillessen individually and as a trustee of the Cillessen Trust and Joyce K. Cillessen, individually and as a trustee of the Cillessen Trust, by and through undersigned counsel, voluntary dismiss this action without prejudice…”

The Cillessens, whose primary residence is in Arvada but also own a home on 74 acres in Gunnison County, alleged in the suit filed at the end of April that the county’s order at that time made in response to the coronavirus “constitutes a regulatory taking, and the failure to pay just compensation,” as well as a violation of substantive due process rights, and thus violates the U.S. and state constitutions.”

A day after the lawsuit was filed, Gunnison County updated its public health order stating non-resident homeowners could return to the county as long as they self-isolated for seven days. Gunnison County attorney Matthew Hoyt said the timing was coincidental and the lawsuit did not impact any decision by Reynolds.

The Cillessens had not dropped the lawsuit even under the changing circumstances. Last week the county, through a law firm it had hired to handle the suit, detailed a response to the lawsuit and laid out its defense of making and enforcing the order.

“We also do not believe that Plaintiffs can, in good faith, proceed forward with their claims after being fully advised of the arguments, caselaw and materials referenced herein. As such, we respectfully request that Plaintiffs voluntarily dismiss their claims against the County at this time. A failure to do so may result in the filing of sanctions and the monetary recovery flowing therefrom. Additionally, should this case proceed, the County will seek to recover its fees…” wrote attorney Eric Ziporin of the Denver firm SGR to Cillessen attorney Theodore Wells of Allen & Curry.

That June 2 letter gave Wells a deadline of June 24 to respond. The response to voluntarily dismiss the lawsuit came June 5.

“This lawsuit was a waste of taxpayer dollars and consisted of obviously frivolous claims,” commented Hoyt. “The County is pleased that the plaintiffs now understand this and have voluntarily dismissed their case.”

Wells said Tuesday that his clients felt the prompt removal of some of the health orders resulted in the achievement of the Cillessen’s primary goals of the lawsuit and it was unnecessary to continue the matter in court. “The Cillessens voluntarily dismissed their lawsuit because Gunnison County and Director Reynolds promptly ended their ill-conceived blanket ban on nonresident homeowners and withdrew the subsequent unconstitutional order requiring nonresident homeowners to report when they will be in the County,” he told the News via email. “ Given Gunnison County’s and Director Reynolds’ decisions to promptly remove these problematic aspects of the well-intended public health orders, the Cillessens believe that further litigation is unnecessary.” 

Hoyt said a final tally of the cost to county taxpayers has not yet been tabulated. “We don’t have a final bill yet but of course, whatever we spend on outside counsel would not take into account my time, our paralegal’s time and other county employee’s time dealing with this meritless case rather than engaging in the business of the county, particularly in the face of an ongoing pandemic,” he concluded.