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HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, Et Al, V. Council Of The City Of Fort Collins - 005 - Solitaire's Motion To Intervene 10.31.2022DISTRICT COURT, LARIMER COUNTY, COLORADO 201 La Porte Ave., Suite 100 Ft. Collins, Colorado 80521 720.865.8307 Plaintiffs: Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation; and Miranda Spindel; v. Defendant: Council of the City of Fort Collins  COURT USE ONLY  Counsel for Proposed Intervenors, Solitaire Homes East, LLC and Solitaire Homes, LLC Andrew J. Petrie, #11416 Andrew Valencia, #54691 BALLARD SPAHR LLP 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com Case Number: 2022CV30661 Division Courtroom SOLITAIRE’S MOTION TO INTERVENE Solitaire Homes East, LLC and Solitaire Homes, LLC (collectively, “Solitaire”), the applicants that successfully obtained the City of Fort Collins’ approval to proceed with their development and which approval plaintiffs now challenge, move pursuant to C.R.C.P. 24 to intervene as defendants in Case No. 2022CV30661 for the purpose of protecting their interest in the property that is the subject of the dispute. DATE FILED: October 31, 2022 4:57 PM FILING ID: BCEFD75DF25CB CASE NUMBER: 2022CV30661 2 In support of their Motion to Intervene, Solitaire states as follows: SUMMARY OF SOLITAIRE’S POSITION Solitaire is the owner and developer of approximately 41.34 acres of land in Larimer County (the “Property”). Plaintiffs bring this action attempting to invalidate Solitaire’s Development Plan for the Property, which the City of Fort Collins (the “City”) approved and the City Council of Fort Collins (the “Council”) subsequently affirmed on appeal. Because it cannot be disputed that Solitaire has an interest in the Property, as well as its rights to develop the Property, which Property and rights will be adversely affected if Plaintiffs challenge were to be successful, it necessarily has an interest in this Court’s review of the Development Plan. As the real party in interest, Solitaire is entitled to intervene as a matter of right to protect those interests. A disposition of Plaintiffs’ challenge in Solitaire’s absence will impair Solitaire’s ability to protect its established property interests. CERTIFICATION OF COUNSEL Undersigned counsel conferred with counsel for Plaintiffs regarding the relief requested. Plaintiffs’ counsel advised that Plaintiffs oppose the requested relief asserting the Council improperly considered the issues Plaintiffs raise, issues Plaintiffs argue have “nothing to do with [Solitaire] or any actions taken thereby.” While acknowledging their action “has a profound impact on [Solitaire’s] plans for development,” Plaintiffs contend they “are not alleging any wrongdoing by [Solitaire] and are simply taking issue with the City Council’s failure to properly consider and interpret their own municipal code.” 3 Undersigned counsel also conferred with counsel for defendant the Council of the City of Fort Collins and the City of Fort Collins. The City and Council’s counsel advised they support the requested relief. The City and Council were preparing to file a motion to dismiss for failure to join an indispensable party, which motion this motion to intervene will make unnecessary. BACKGROUND Solitaire is the owner and developer of the Property, a 41.34-acre parcel of vacant land located at the northwest corner of La Porte Avenue and North Taft Hill Road in the City of Fort Collins. On June 17, 2021, Solitaire submitted to the City an initial application for the development of the Property, which application it subsequently revised and resubmitted on November 5, 2021 (the “Development Plan”). On May 2, 2022, a Hearing Officer properly evaluated the Development Plan in a Type 1 Administrative Hearing. The Hearing Officer timely issued a decision on May 16, 2022 approving the Development Plan. On May 31, 2022, Plaintiff Miranda Spindel, along with several other individuals, filed a Notice of Appeal, asserting that, among other things, the hearing officer presiding over the administrative hearing improperly interpreted the City’s Land Use Code (or “LUC”). [Pls.’ Compl. ¶¶ 42-46]. The Council heard the appeal August 16, 2022 and subsequently affirmed the decision to approve the Development Plan on September 6, 2022. Plaintiffs, displeased with the Council’s decision, then filed their Complaint seeking judicial review of the Hearing Officer’s and City Council’s decisions, as well as the procedure implemented throughout the process. [Id. at ¶¶ 54-61]. Plaintiffs also 4 seek a declaratory judgment that the City, Hearing Officer, and the Council violated their “procedural and substantive due process rights under the Due Process clause of the Fourteenth Amendment to the U.S. Constitution…as well as Plaintiffs’ rights under the LUC and other applicable law, code and regulations.” [Id. ¶¶ 62-65]. Although any decision this Court renders will directly impact Solitaire’s property interests, Plaintiffs elected not to join Solitaire as a defendant. A. SOLITAIRE MAY INTERVENE AS A MATTER OF RIGHT Solitaire has the right to intervene to protect its interests in the Property and the Development Plan. C.R.C.P. 24(a)(2) provides that courts “shall” permit a party to intervene: when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by the existing parties. “Rule 24 should be liberally interpreted to allow, whenever possible and compatible with efficiency and due process, issues related to the same transaction to be resolved in the same lawsuit and at the trial court level.” Cherokee Metro. Dist. v. Meridian Serv. Metro. Dist., 266 P.3d 401, 404 (Colo. 2011). Because Solitaire has an interest in the Property and the rights to develop the Property that are subject of this action, its position is not adequately represented by any party to this action, and a disposition in its absence will substantially impair its ability to protect that interest, the Court should permit Solitaire to intervene in this action. 5 1. Solitaire Has an Interest In the Subject of This Action. Colorado imposes “three substantive requirements” for intervention as of right. Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass’n, 487 P.3d 276, 281 (Colo. 2021) (citing Feigin v. Alexa Grp., 19 P.3d 23, 28 (Colo. 2001)). The first requirement is that the intervenor have an “interest relating to the property or transaction which is the subject of the action.” Cherokee, 266 P.3d at 404. Colorado employs a flexible approach when determining the existence of such an interest, the existence of which “should be determined in a liberal manner,” and includes the enforcement of rights and an interest in the outcome. Feigin, 19 P.3d at 29; Cherokee, 266 P.3d at 404-05. Notably, the Colorado Supreme Court has determined that an owner of land “clearly meets this requirement.” Dillon Cos., Inc., v. City of Boulder, 515 P.2d 627, 628- 29 (Colo. 1973) (the owner of land that is the subject of a challenged ordinance or zoning change “clearly” meets the first requirement). Further, in Village at Treehouse, Inc. v. Property Tax Adm’r, the court of appeals held “development rights are property interests.” 321 P.3d 624, 626 (Colo. App. 2014). Village at Treehouse concerned development rights to build condominium units—a development right similar to Solitaire’s right to build the residential community at issue in this action. Id. at 626-27. There, the development rights constituted a taxable real property interest for ad valorem tax purposes. Id.; see also HDH P’ship v. Hinsdale Cty. Bd. of Equalization, 459 P.3d 586, 592 (Colo. App. 2017) (holding “other real property ownership rights include the right to develop the property”); rev’d on other grounds, 438 P.3d 742 (Colo. 2019). As the owner and developer of the Property, it cannot be disputed that Solitaire has a direct 6 interest in both the Property and the rights to develop the Property, and, therefore, the transaction forming the basis of this action. 2. Solitaire’s Absence From This Action Will Impair Its Ability to Protect Its Interests. Under the second Rule 24(a)(2) factor, the party seeking to intervene must demonstrate “that it is so situated that the disposition of the underlying action may as a practical matter impair its ability to protect its interest.” Cherokee, 266 P.3d at 406. The prong is satisfied where “the disposition of the action in which intervention is sought will prevent any future attempts by the applicant to pursue his interest.” Feigin, 19 P.3d at 30. An adverse decision in this action will impair, and even eliminate, Solitaire’s development interests in the Property. Other than intervention in this action, Solitaire has no other practical alternative to challenge a decision entered here. Indeed, Solitaire cannot disregard or opt out of an adverse ruling impairing its property rights, nor can it, as a non-party, bring an independent challenge or appeal a determination this Court renders in its absence. See Cherokee, at 406-07 (finding that disposition of declaratory judgment action and lack of independent challenge practically impaired party’s interest in protecting water rights at issue). Accordingly, the disposition of this action in Solitaire’s absence will undoubtedly impair its ability to protect its ownership interests in the Property. 3. No Other Party Adequately Represents Solitaire’s Interest. The City of Fort Collins and the City Council of Fort Collins will not adequately represent Solitaire’s interests. When determining whether a party’s interest is 7 adequately represented, Colorado courts divide the adequacy of the representation into three categories: “[1] If the interest of the absentee is not represented at all, or if all existing parties are adverse to the absentee, then there is no adequate representation. [2] . . . [I]f the absentee’s interest is identical to that of one of the present parties, or if there is a party charged with representing the absentee’s interest, then a compelling showing should be required to demonstrate why this representation is not adequate. [3] But if the absentee’s interest is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, although intervention ordinarily should be allowed unless it is clear that the party will provide adequate representation for the absentee.” Cherokee, at 407 (emphasis removed) (“quoting “ 7C Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 1997)). Plaintiffs directly oppose the Development Plan and Solitaire’s exercise of its development rights as owner of the Property. Moreover, while it could be argued that the City and Council are interested in the preservation of their decisions concerning the Development Plan, they lack Solitaire’s property interest in the Property and its interest in exercising its rights to develop the property. In WildEarth Guardians v. United States Forest Serv., the government approved plans for venting methane gas from a coal mine and WildEarth Guardians sued, alleging the plans violated environmental policy.1 573 F.3d 992, 994 (10th Cir. 2009). The district court initially denied the coal mine owner’s motion to intervene. Id. On appeal, the court found the owner was entitled to intervene as of right even though the owner and government shared the same objective in defending the government agency’s decision 1 Colorado courts should interpret the Colorado Rules of Civil Procedure “harmoniously with our understanding of similarly worded federal rules of practice.” Warne v. Hall, 373 P.3d 588, 592 (Colo. 2016). 8 to approve the plans. Id. at 994, 996. An intervenor shows possible inadequate representation “‘when the party upon which the intervenor must rely is the government, whose obligation is to represent not only the interest of the intervenor but the public interest generally, and who may not view that interest as coextensive with the intervenor’s particular interest.’” Id. (“quoting “ Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1254-56 (10th Cir. 2001) (explaining that “in litigating on behalf of the general public, the government is obligated to consider a broad spectrum of views, many of which may conflict with the particular interest of the would-be intervenor”)); See also Cherokee, at 407 (finding intervention by party to a contract was proper in lawsuit involving the other party to the agreement, noting that even where both parties wanted the agreement to move forward, they had separate rights to protect and a party may choose to make concessions or litigation decisions that adversely impact the intervening party’s interests). The City and Council could well decide they did not wish to expend the time and energy to protect their decisions in this instance, or did not see this as the optimal vehicle to address this type of challenge, and withdraw the approval. The City and Council will need to expend public funds to defend this action, the expenditure of which is directed to a decision that created both public benefit in adding needed housing stock and valuable development rights for a private party, Solitaire. It is both logical and fiscally responsible that the City and Council would expect the private party benefitting the most from this zoning decision to step-up and defend that decision. Because Solitaire has an interest in the subject of this action that is not adequately represented by any of the parties and a disposition in Solitaire’s absence will 9 adversely impact its ability to protect that interest, the Court should allow Solitaire to intervene. B. ALTERNATIVELY, THE COURT SHOULD PERMIT SOLITAIRE TO INTERVENE BECAUSE THERE ARE COMMONS ISSUES OF LAW OR FACT. Even if the Court were to determine that Solitaire may not intervene as a matter of right, the Court should permit it to intervene because there are common issues of law or fact between Solitaire’s defenses and those the City and Council will raise in this action. This permissive intervention is appropriate under the Rules. Pursuant to C.R.C.P. 24(b), “anyone may be permitted to intervene in an action…when an applicant’s claim or defense and the main action have a question of law or fact in common.” As explained in detail above, Plaintiffs’ claims require this Court to determine the validity of the Development Plan and procedural process the City and Council implemented when approving it. Solitaire’s defenses will have significant issues of law or fact in common with the City’s and Council’s defenses. For example, Solitaire will show that the Development Plan is proper and that the City and Council properly approved the plan. If the Court does not permit Solitaire to intervene as a matter of right, the Court should permit Solitaire to intervene in light of the complete overlap in issues. CONCLUSION For all of these reasons, Solitaire respectfully requests that the Court enter its Order authorizing Solitaire to intervene as a matter of right, or, in the alternative, permitting Solitaire to intervene. 10 Solitaire attaches a proposed Answer to the Complaint pursuant to C.R.C.P. 24. Dated: October 31, 2022. Respectfully submitted, Ballard Spahr LLP /s/ Andrew J. Petrie Andrew J. Petrie, #11416 Andrew Valencia, #54691 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com Attorneys for Proposed Intervenors, Solitaire Homes East, LLC and Solitaire Homes, LLC CERTIFICATE OF SERVICE I hereby certify that on October 31, 2022, the foregoing Motion to Intervene was filed via the Courts electronic notification system, which will send notification of same to all counsel of record. /s/ Brandon Blessing