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HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, Et Al, V. Council Of The City Of Fort Collins - 008.1 - Plaintiffs' Response To Motion To InterveneDISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 La Porte Ave., Suite 100 Fort Collins, CO 80521 Plaintiffs: Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation; and Miranda Spindel v. Defendant: Council of the City of Fort Collins Andrew Pipes, #53233 Frascona, Joiner, Goodman and Greenstein, P.C. 4750 Table Mesa Drive Boulder, CO 80305 Phone Number: 303-494-3000 Fax #: 303-494-6309 E-mail: andrew@frascona.com COURT USE ONLY _________________________ Case Number: 2022CV030661 Div. 5A Ctrm: RESPONSE TO SOLITAIRE’S MOTION TO INTERVENE Plaintiff Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation (“SFNN”), and Miranda Spindel (“Miranda,” and together with SFNN, the “Plaintiffs”), by and through their attorneys, Frascona, Joiner, Goodman and Greenstein, P.C., hereby submit this Response to Solitaire’s Motion to Intervene (this “Motion”): BACKGROUND Solitaire Homes East, LLC and Solitaire Homes, LLC, each Colorado limited liability companies (collectively, the “Intervenors”), acquired approximately 41.34-acres of vacant land, described as Parcel Nos. 9709104001, 9709104002 and 9709103020, as recorded with the Larimer County Clerk and Recorder (collectively, the “Subject Properties”), between 2004 and 2017. As the Intervenors have stated, they each acquired the Subject Properties with the intent to develop the same with multiple types of residential dwellings. On February 15, 2019, the Intervenors submitted a plan of development with the City of Fort Collins, Colorado (the “City”) under a type DATE FILED: November 17, 2022 8:37 AM FILING ID: 60F355F211C94 CASE NUMBER: 2022CV30661 2 of review known as Type 2 (the “Initial Plan”). Pursuant to a Type 2 review, the City’s Planning and Zoning Board reviewed the Initial Plan in a public hearing and was poised to reject the same due to the mix of housing types proposed. During the hearing and prior to any action to deny their proposal, the Intervenors withdrew the Initial Plan. The Intervenors then amended the Initial Plan by removing some multi-family housing and submitted a new plan (the “Amended Plan”) on November 5, 2021. The Amended Plan was processed as a Type 1 review, which does not require a public hearing at the City’s Planning and Zoning Board and is instead heard by the director of the City’s Community Development and Neighborhood Services Department (the “Director”) in an administrative hearing, pursuant to Art. 2, § 2.7(A)(1) of the City’s Land Use Code (the “LUC”). However, instead of the Director presiding over the administrative hearing and issuing a decision, the City appointed a hearing officer not employed by the City to preside over the administrative hearing (the “Hearing Officer”). On May 22, 2022, the City held an administrative hearing to review the Amended Plan (the “Hearing”), which was ultimately approved by the Hearing Officer, and is part of the subject matter of this action. In the Hearing Officer’s written decision, the Hearing Officer failed to properly implement the Northwest Subarea Plan (the “NWSAP”), which is designed to guide the City in determining how to develop the area in which the Subject Properties reside and was adopted by the Council of the City of Fort Collins (the “Defendant”) on December 19, 2006. Miranda, along with several other community members, then filed a notice of appeal on May 31, 2022 under Art. 2, § 11.2 of the LUC, seeking for a review of the Hearing Officer’s decisions (the “Appeal”). Article 2, § 2.12 of the LUC states that an appeal of a decision by the Director or other decision maker’s final decision shall be appealed to the City’s Planning and Zoning Board. Instead, the 3 Appeal was heard by the Defendant on August 16, 2022 (the “Appellate Hearing”). At the Appellate Hearing, the Defendant focused the majority of their efforts analyzing and comparing the Amended Plan to a nearby housing complex that was developed prior to the adoption of the NWSAP and was, ultimately, an improper basis for the Defendant’s decision denying the Appeal. The Plaintiffs filed their Complaint with this Court seeking review of the quasi-judicial function of the Defendant in reaching their decision, which was read on September 6, 2022, and seeking a declaration of their rights with respect to their procedural and substantive due process rights under the U.S. Constitution, the LUC and the City’s Municipal Code (the “Code”). Importantly, as implied in the foregoing, the Plaintiffs seek redress of the Defendant’s deprivation of the Plaintiffs’ due process rights, of which the Intervenors have no rights, obligations, or abilities to provide or deprive the Plaintiffs thereof. The Intervenors’ Motion to Intervene (“Intervenors’ Motion”) is based upon their assertion that the Intervenors own the Subject Properties and therefore have an interest in developing the Subject Properties. While the Plaintiffs do not dispute that the Intervenors have a right to develop the Subject Properties, the Amended Plan requires a deviation from the LUC standards, as contemplated by the City. Such deviation necessitated the Hearing and the Appellate Hearing that are the subject matter of this litigation. Importantly, any right obtained through illegal or improper means are necessarily not legally protected. See Bock v. American Growth Fund Sponsors, Inc., 904 P.2d 1381, 1386 (Colo. App. 1995). Without the Defendant’s unlawful deprivation of the Plaintiffs’ procedural and substantive due process rights, the Intervenors would not have a right to develop the Subject Properties subject to the Amended Plan. Thus, should this Court hold that the Defendant deprived 4 the Plaintiffs of their due process rights, the Intervenors’ asserted rights would fall apart. Meaning that the Intervenors’ asserted rights are the progeny of the Defendant’s unlawful acts. Therefore, the Intervenors intervention into this litigation is improper because the Plaintiffs assert that any rights to develop the Subject Properties are ill-gotten and should not be recognized in an action to determine whether a quasi-judicial body deprived the Plaintiffs of their due process rights. Additionally, the asserted interest in the Subject Properties is contingent upon the issuing of floodplain use permit by the City (a “Floodplain Permit”) rendering their intervention inappropriate.1 Finally, this action does not seek to void the Amended Plan, or any derivation thereof, but rather asserts that the City and the Hearing Officer violated the Plaintiffs’ substantive and due process rights by misinterpreting the Code and the LUC, neither of which precludes the viability or legality of the Amended Plan. Thus, no possible outcome of this litigation precludes, impairs or impedes the Intervenors’ asserted interests in the Subject Properties. LEGAL STANDARD The Fourteenth Amendment mandates that a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. Over the years, the definition of property has “evolved … to encompass not only tangible physical property, but a ‘legitimate claim of entitlement’ to certain circumscribed benefits.” Hillside Community Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). Importantly, Colorado courts have conclusively established “that procedural guarantees stemming from state law or local ordinance do not create a constitutionally cognizable property 1 See Administrative Staff Report Presented to the Administrative Hearing Officer, pg. 5-6, attached hereto as Exhibit A; Applicant Response to City Staff Comments – Round 3, pg. 2, attached hereto as Exhibit B; Drainage Report, Floodplain Notes, pg. 4, attached hereto as Exhibit C. 5 interest.” Id., at 1023. Therefore, the only questions to be determined under a C.R.C.P. 106(a)(4) action is whether a governmental body or officer has exceeded its jurisdiction or abused its discretion based upon the evidence in the record. C.R.C.P. 106(a)(4)(I); see also Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004). To have standing a party must suffer an injury in fact stemming from a violation of a legally protected right. Brown v. Bd. of Cnty. Comm'rs of Arapahoe Cnty., 720 P.2d 579, 582 (Colo. App. 1985). A “legally protected interest” may be rooted in constitutional provisions, a specific statute, or in the common law. 1405 Hotel, LLC v. Colorado Economic Development Commission, 2015 COA 127, ¶ 43. Because such interest must be rooted in law, any right obtained through illegal or improper means are necessarily not legally protected. See Bock, supra (even innocent third-party recipients of benefits must surrender the same if obtained as a result of fraud); see also Sladek v. City of Colo. Springs, No. 13-cv-02165-PAB-MEH, 2014 WL 86819, at *5 (D. Colo. Jan. 9, 2014) (concluding that claimant did not have a legally protected interest in opening a marijuana dispensary because local governments may prohibit these establishments within their communities and thus did not have standing). Further, “the possibility of alleged future injury is too remote to establish standing,” Anderson v. Suthers, 2013 COA 148, ¶ 15, as the Intervenors’ interest in this litigation is contingent (see below). Colorado Rule of Civil Procedure 24(a) states that “anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) 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 6 existing parties.” It is implied therein that such interest must be a legally protected one. See 1405 Hotel and Bock, supra. It is also improper to allow a party to intervene if such party’s interest is contingent upon the outcome of a test or third-party determination. J.E.S. v. F.F., 762 P.2d 703, 706 (Colo. App. 1988). See also Bolt Factory Lofts Owners Association Inc. v. Auto-Owners Insurance Company, 2019 COA 121, ¶ 13 (“[I]f the interest is contingent, it may be insufficient to warrant intervention.”). Finally, “[u]nder Rule 24(a)(2), once an applicant has established an interest in the subject of the action, he must then ‘demonstrate that the disposition of that action may, as a practical matter, impair or impede the applicant's ability to protect that interest.’” Feigin v. Alexa Grp., Ltd., 19 P.3d 23, 30 (Colo. 2001) (citing 6 James Wm. Moore et al., Moore's Federal Practice § 24.03(3)(a) (3d ed.2000)). Meaning that, if the attempting intervenors have alternative forums in which to seek redress, their interest is neither impaired nor impeded. Id. ARGUMENT A. Intervenors’ “Interest” is Ill-Gotten and Not a Legally Protected Interest The subject matter of this action is whether the Defendant and the Hearing Officer exceeded their jurisdiction and abused their discretion under the LUC and the Code and ultimately deprived the Plaintiffs of their substantive and due process rights under the U.S. Constitution. As stated in the Intervenors’ Motion, their interest in the Subject Properties, and therefore this action, is their right to develop the same. Intervenors’ Motion, pg. 6. It is implied therein, and obvious, that such development right is referring to their ability to legally develop the Subject Properties 7 under the Amended Plan.2 Thus, it stands to reason that the right asserted by the Intervenor in this action is their ability to develop the Subject Properties in accordance with the Amended Plan. However, as alleged in the Complaint, such “interest” is explicitly predicated on the Defendant’s unlawful actions and, but for such unlawful conduct, the Intervenors could articulate no interest in the subject matter of this action. So, because the Intervenors’ interest in this action was obtained through the Defendant’s unlawful actions and a third party cannot articulate an interest in a benefit resulting from illegal conduct, see Bock, supra, the Intervenors have no legally protected interest in this action and should not be permitted to join. B. Intervenors Do Not Meet the Requirements of C.R.C.P. 24(a)(2) 1. Intervenors’ Interest is Contingent As shown in the attached exhibits, the Intervenors’ rights to develop the Subject Properties under the Amended Plan are contingent upon the issuance of a Floodplain Permit, which has yet to be issued or even evaluated for issuance. This additional and undetermined step renders the Intervenors’ interest contingent because without such Floodplain Permit, the Intervenors cannot develop the Subject Properties under the Amended Plan. Permitting the Intervenors to join this litigation pursuant to a contingent interest that is subject to the control of the City and effectively control the City’s defense in this action would unfairly restrict the Defendant, behold the Defendant (a publicly elected body) to the interests of private corporate fictions, and emanate impropriety between government and private enterprise. See Bolt Factory, ¶ 14 (citing Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638 (1st Cir. 1989)). It cannot be that Rule 24(a)(2) was 2 No possible outcome of this litigation can ever preclude or otherwise impair the Intervenors’ ability to develop the Subject Properties without the variances granted by the Hearing Officer and the Defendant in the Amended Plan. 8 promulgated or designed to permit governmental defendants from farming out the defense of their unlawful actions through in-kind services to developers of real property. Thus, permitting the Intervenors to join this action and control the defense of the Defendant must be improper under these circumstances. Therefore, due to the contingent nature of the Intervenors’ claimed interest in this action and the ultimate liability for the unlawful actions alleged in the Complaint, the Intervenors’ intervention in this case is inappropriate. 2. Intervenors’ Potential Interest is Not Precluded, Impaired or Impeded In addition to the contingent nature of the Intervenors’ asserted interest, no possible outcome of this action will preclude, impair or otherwise impede the same. The Intervenors’ claim that this action will eliminate its ability to develop the Subject Properties under the Amended Plan is simply false. Intervenors’ Motion, pg. 6. This action seeks this Court’s review of the Plaintiffs’ substantive and procedural due process rights, not to invalidate or otherwise preclude the Intervenors’ contingent interest under the Amended Plan. In the event this Court determines that the Defendant did violate the Plaintiffs’ substantive and/or procedural due process rights, the Intervenors’ interest in the Subject Properties is not precluded because the issue will be remanded to the Defendant for an appropriate review, in accordance with the conclusions of this Court. The Plaintiffs do not seek an order from this Court dictating that development of the Subject Properties is prohibited or that the Amended Plan itself is unlawful, but rather that the Defendant’s and Hearing Officer’s process and analysis in approving the Amended Plan violated the Plaintiffs’ Constitutionally guaranteed rights. Thus, regardless of the outcome of this action, the Intervenors will still have every opportunity to develop the Subject Properties under the Amended Plan or 9 other plan of their devising and application. Further, as noted above, the Intervenors are still waiting on the issuance of a Floodplain Permit and have been warned that they are to proceed “at their own risk.” See Exhibit C, Floodplain Note # 12. Thus, neither this action nor the outcome hereof will impair, impede, or otherwise change the contingent nature of the Intervenors’ claimed interest as it is still pending and will not be altered by the outcome of this action or the action itself. Thus, the Intervenors’ Motion should be denied because the outcome of this action will neither preclude, impair nor impede their interest herein. 3. The Defendant Can Adequately Represent Intervenors’ Interest Next, the Intervenors claim that the Defendant is incapable of adequately representing its continent interest in this action for two reasons: (1) because the government has an interest in the general public; and (2) the Defendant may determine that they just don’t have the time or energy to litigate the veracity or legitimacy of their own decision or process. Intervenors’ Motion, pg. 8. The Plaintiffs urge this Court not to be so cynical. “If the interest of the absentee is not represented at all, or if all existing parties are adverse to him, then he is not adequately represented.” Feigin, 19 P.3d at 31. See also Mauro by and through Mauro v. State Farm Mutual Automobile Insurance Company, 410 P.3d 495, 499 (Colo. App. 2013); Dillon Companies, Inc. v. City of Boulder, 515 P.2d 627, 629 (Colo. 1973) (Court held that an applicant’s interest was not adequately represented when the City of Boulder and city council decided not to appeal a decision of the district court.). “Further, under C.R.C.P. 24(a)(2) a party may intervene as a matter of right if it can show that ‘the representation of his interest is or might be inadequate and the applicant is or might be bound by the judgment in [the] action.’” 10 Briggs v. American Family Mut. Ins. Co., 833 P.2d 859, 863 (Colo. App. 1992) (quoting Howlett v. Greenberg, 530 P.2d 1285, 1288 (Colo. App. 1974)). Here, the issue in this action is whether the Defendant’s actions and the Hearing Officer’s interpretation of the Code and the LUC violated the Plaintiffs’ due process rights. Thus, the only possible outcomes at trial are either the Plaintiffs’ rights were or were not violated, an issue which is presumably of grave concern to a governing body in America (i.e., the Defendant). While it cannot be stated that the Defendant does not have an interest in the general public, it also shares a strong interest in the legitimacy of its decisions and processes, which the Defendant has already stated outweighs the overwhelming interest of the public.3 Thus, the Defendant and the Intervenors share an interest in abiding by the law and are not adverse in any manner. Next, despite the fact that the Defendant has hired an attorney and asserted an answer denying the vast majority of the allegations in the Complaint, the Intervenors assert that the Defendant may just not have the time, energy or resources to litigate this matter. Intervenors’ Motion, pg. 8. So, in order demonstrate inadequacy of representation under this theory, the Intervenors must show that the Defendant is apathetic towards the Plaintiffs’ claims and the outcome of this action, which is directly contradicted by the Defendant’s Answer and their response in support of the Intervenors’ Motion. The Defendant’s filing clearly demonstrate that the Defendant is prepared to vigorously defend this action, which is the exact opposite of the required showing. Therefore, without more, the Intervenors cannot show that the Defendant has no interest in defending this action. In fact, the record easily demonstrates that the Defendant is prepared to protect the Intervenors’ contingent interest. 3 See Complaint, ¶ 33. 11 Finally, the Defendant is the party in the best position to litigate this action as they are, presumably, experts in the Code and LUC that it promulgated. And, as shown above, because the Defendant and the Intervenors share an interest in the outcome of this litigation and the Defendant is an expert in its own codes and regulations, the Defendant is more than adequately prepared to protect the parties’ shared interests. Thus, the Intervenors have failed to demonstrate the elements required to intervene under Rule 24(a)(2) and the Intervenors’ Motion should be denied. C. There Are No Common Issues of Fact or Law Lastly, the Intervenors throw in an argument for a permissive intervention by claiming that there are common issues of fact and law between the Intervenors and Defendant in this action. “C.R.C.P. 24(b) provides for permissive intervention when an applicant's claim and the original cause of action present common questions of law or fact, so long as the intervention will not unduly delay or prejudice the rights of the original parties.” In re Marriage of Paul, 978 P.2d 136, 139 (Colo. App. 1998). Here, as noted above, the issue is whether the Plaintiffs’ rights were violated and whether the Hearing Officer correctly interpreted the Code and the LUC. While the Amended Plan is part of any analysis regarding the Hearing Officer’s interpretation and the Defendant’s subsequent review thereof, the Amended Plan and its presentation are laid out in the record in painstaking detail for this Court’s review. Because all of the evidence considered by the Hearing Officer and the Defendant, which is the evidence to be considered by this Court, are in the record the Plaintiffs do not see how the Intervenors joinder in this action is necessary or helpful. See Puckett v. City and County of Denver, 12 P.3d 313, 314 (Colo. App. 2000) (“The standard of review under C.R.C.P. 106(a)(4) is whether, on the basis of the whole record, the findings of the agency 12 are supported by any competent evidence.”). Thus, the only possible outcome of permitting the Intervenors to join this action is to delay 4 or otherwise fund the defense of this litigation, neither of which is permitted under Rule 24(b). Additionally, the Intervenors are neither the applicant nor the listed property owner in the application. See Amended Plan Application, attached hereto as Exhibit D. So, whatever common issues of fact or law surround the application are issues that can only competently be litigated by those parties, neither of which are the Intervenors. Therefore, intervention should not be permitted. D. Intervenors Are Not an Indispensable Party The Defendant’s Response in Support of the Intervenors’ Motion cites to Neighbors for a Better Approach v. Nepa, which determined that an applicant is an indispensable party in a Rule 106 action. 770 P.2d 1390, 1391 (Colo. App. 1989). However, as noted above, the Intervenors are not listed as a party on the Amended Plan’s application rendering the Neighbors case inapplicable. See Exhibit D. Therefore, the Intervenors are not an indispensable party. CONCLUSION For the reasons set forth herein, the Plaintiffs respectfully request that this Court deny the Intervenors’ Motion as the Intervenors do not meet the requirements under C.R.C.P. 24 to intervene in this action. WHEREFORE, the Plaintiffs respectfully request that the Intervenors’ Motion be denied and for such other relief as the Court deems just and proper. Dated: November 17, 2022. Respectfully submitted, 4 As the Intervenors’ Motion is currently doing. 13 Frascona, Joiner, Goodman and Greenstein, P.C. /s/ Andrew Pipes Andrew Pipes, Atty. Reg. No. 53233 4750 Table Mesa Drive Boulder, Colorado 80305-5500 (303) 494-3000 14 CERTIFICATE OF SERVICE The undersigned hereby certifies that on November 17, 2022, a true and correct copy of the foregoing RESPONSE TO SOLITAIRE’S MOTION TO INTERVENE was served via Colorado Courts E-Filing on the parties as listed below: Attorneys for Defendant Corey Y. Hoffmann, No. 24920 Katharine J. Vera, No. 53995 Firm: Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, CO 80202 Phone: (303) 825-6444 E-mail: cyh@hpwclaw.com kjv@hpwclaw.com Attorneys for Proposed Intervenors, Solitaire Homes East, LLC and Solitaire Homes, LLC Ballard Spahr LLP Andrew J. Petrie Andrew Valencia 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com /s/ Scarlet Ramirez___________ Scarlet Ramirez, Paralegal