Editor’s note: This article has been updated to correct the volume of the Wilson water tank.

In the coming days, Colorado Springs Utilities will begin filling up a new water tank in the Mountain Shadows neighborhood as a district court judge considers a lawsuit filed by area residents seeking to overturn the city’s approval to build the structure.

The municipal utility expects to start filling the 5 million-gallon concrete Wilson water tank on Monday and it is scheduled to be in service by June 30, Utilities spokeswoman Jennifer Jordan confirmed via email Wednesday.

The actions come seven months after the Colorado Springs City Council, whose nine members also act as the Colorado Springs Utilities Board of Directors, allowed the tank to stand about 60 feet high — nearly 20 feet taller than original development plans for the project allowed. The council’s November decision overturned an October Planning Commission vote not to authorize Utilities to modify the development plan to increase the tank’s maximum height, and thereby reconcile the height difference.

Neighbors in Mountain Shadows and the nearby Flying W Ranch, a longtime Colorado Springs tourist attraction, have for a year opposed the new tank’s construction at 60 feet tall. In previous public meetings, they’ve said they do not oppose the water tank but want it built no higher than the 45-foot height Utilities initially told them it would be.

The Flying W Ranch along with Mountain Shadows resident Larry Starr in mid-February consolidated two separate lawsuits they filed in the matter in El Paso County District Court.

In a 17-page brief filed April 17, the plaintiffs argue the City Council, because it acts as the Utilities board, had a “nonwaivable and blatant conflict of interest” when it allowed the Wilson water tank to stand taller than originally approved.

The council’s actions also violated the city’s ethics code, which “states that the city should ‘strive to avoid any conduct creating the appearance of impropriety,’” the suit charges.

The council “exceeded its jurisdiction and abused its discretion in violation of (Colorado Rules of Civil Procedure),” plaintiffs said. “Despite each councilmember stating that he or she could be ‘fair and impartial’ in their decision on (Colorado Springs Utilities’) Major Modification Request, it is reasonable to infer that City Council would have a bias that would prevent it from dealing fairly with (Utilities’) appeal since it owes (Utilities) a nonwaivable statutorily imposed fiduciary duty to act in the best interest of (Utilities). This impropriety — let alone the appearance of impropriety — is enough to vitiate the proceedings and void City Council’s decision based on an abuse of discretion.”

In a 31-page answer filed May 28, city attorneys argued the court should affirm the City Council’s decision. Plaintiffs have not shown the council “acted impartially” in its decision to allow the water tank to stand, they said. The City Council is, also, “the only body empowered by city code to make the final decision on the appeal … and City Council’s decision cannot be substituted by that of the City Planning Commission.”

“Because the record demonstrates neither actual bias nor a risk of actual bias to a degree violative of plaintiffs’ due process rights and City Council’s dual roles do not create a conflict of interest under governing law, City Council’s decision should be affirmed,” city attorneys said.

The council also did not violate Colorado Springs ethics code, they said.

“Because serving as the ‘final decision’ maker on land use appeals and as the Utilities Board both are ‘official duties and responsibilities’ of City Council, by definition, they neither are prohibited by nor create an appearance of impropriety under the ethics code,” city attorneys said.

Utilities did not comment on the ongoing lawsuit Wednesday.

The Flying W Ranch and Starr seek a court ruling reversing the council’s decision to modify project development plans and increase the final height of the water tank to 60 feet.

They also ask the court to prevent Colorado Springs “from removing, destroying or dismantling” the existing aging steel water tank the new Wilson water tank is intended to replace, until the matter is resolved. Doing this ensures the older water tank will remain available to provide water to the Mountain Shadows neighborhood and the Flying W Ranch if the court rules in plaintiffs’ favor, according to court documents.

A two-day evidentiary hearing is set to begin Sept. 12 to consider the plaintiffs’ motion not to dismantle the existing steel water tank.

Utilities’ Jordan said in a Wednesday email that Colorado Springs Utilities will not remove the old tank “until litigation is finalized.”

It is unclear what will happen with the Wilson water tank if the court rules in favor of Starr and the Flying W Ranch.

The plaintiffs both wish to recover applicable costs and attorney’s fees in the matter.