An El Paso County District Court judge on Tuesday dismissed a lawsuit that sought to rescind the Colorado Springs City Council’s ruling that a new water tank in the Mountain Shadows community could stand as it was built.

Longtime Colorado Springs tourist attraction the Flying W Ranch and Mountain Shadows resident Larry Starr in mid-February consolidated two separate lawsuits they filed alleging the City Council, because it also acts as the Colorado Springs Utilities Board of Directors, had a “nonwaivable and blatant conflict of interest” when it allowed the concrete Wilson water tank Utilities built in the Mountain Shadows neighborhood to remain as is. The tank was built nearly 20 feet taller than originally approved. The council’s determination denied residents due process, they argued.

Additionally, plaintiffs said the council’s actions violated the city’s ethics code, which “states that the city should ‘strive to avoid any conduct creating the appearance of impropriety.’”

In an 11-page order filed Tuesday, El Paso County District Court Judge Amanda Philipps disagreed.

Colorado Springs’ city charter, ordinances and code of ethics mandate council members to “act in the best interest of the city and their constituents while also acting as fiduciaries and members of the board for (Colorado Springs Utilities),” Philipps wrote, but that “does not affirmatively prove a conflict of interest, much less a conflict of interest so severe that it deprived plaintiffs of due process.”

Plaintiffs did not allege that any council members had a personal or financial interest in the matter, she said.

“Ultimately, the city charter and city code clearly assign City Council members the duties of Utilities Board of Directors and of an appeals board for quasi-judicial items. While the Code of Ethics prohibits engaging in activities that conflict with official duties, it would be illogical to read official duties to conflict with each other.

“Additionally, and importantly, plaintiffs were able to cite no case to this court where a conflict of interest raising to the level of a due process violation resulted from an official duty, rather than a personal or pecuniary interest or bias,” Philipps wrote.

Murray I. Weiner, an attorney for the Flying W Ranch, said via email Wednesday his office is reviewing the order and “discussing next steps, if any,” with his client. Plaintiffs can appeal the judge’s order to the Colorado Court of Appeals, he said.

An attorney for Starr did not immediately return The Gazette’s request for comment.

The 5-million gallon Wilson water tank has been in service since July 1, Utilities spokeswoman Jennifer Jordan said.

She declined to comment on Phillips’ order because the suit remains “in the legal process.” For the same reason, she said, Utilities has not scheduled removal of the old steel tank on site, which the Wilson water tank will replace.

Plaintiffs asked the court to prevent Colorado Springs “from removing, destroying or dismantling” the aging steel tank 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.

Colorado Springs spokeswoman Vanessa Zink said in a brief emailed statement Wednesday the city is “pleased with the judge’s decision to dismiss the case.”