HomeMy WebLinkAbout2018CV125 - Rory Heath V. City Of Fort Collins, Et Al - 006 - Defendant's Motion To DismissDISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
Plaintiff: RORY HEATH, as an individual plaintiff and
on behalf of other concerned residents and parties,
v.
Defendants: CITY OF FORT COLLINS CITY
COUNCIL, a municipal governing body; and the CITY
OF FORT COLLINS.
COURT USE ONLY
Kimberly B. Schutt, #25947
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: (970) 482-8929
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 221-6520
Email: jduval@fcgov.com
Case Number: 18CV125
Courtroom: 5A
DEFENDANTS’ MOTION TO DISMISS
COMES NOW the Defendants, City of Fort Collins City Council and the City of Fort
Collins (collectively the “City”), by and through its counsel, WICK & TRAUTWEIN, LLC and
the Fort Collins City Attorney’s Office, and respectfully moves the Court to dismiss this action
based upon Plaintiff’s failure to join an indispensable party. In support hereof, the City states as
follows:
1. RULE 121 CERTIFICATION: Undersigned counsel hereby advises the Court that she
made concerted efforts to confer with plaintiff Rory Heath on these issues, in a good faith
attempt to reach an agreement for him to voluntarily amend his complaint to address his failure
to name an indispensable party. The attempts to confer included providing the same case law set
forth below, which was also set forth in the City’s motion for enlargement of time to file its
responsive pleading. That legal authority was provided to him nine days ago. Plaintiff
responded this morning on the day of the Defendants’ extended answer deadline indicating he
DATE FILED: April 10, 2018 2:32 PM
FILING ID: 7226EF3C7F064
CASE NUMBER: 2018CV125
2
does not understand the arguments without seeing the motion. Accordingly, given Plaintiff’s
failure to file an amended complaint or to otherwise agree to do so, the City brings this matter to
the Court to resolve this critical legal issue.
2. Plaintiff has filed the above-captioned action against the City, seeking review under
C.R.C.P. 106(a)(4) of the City Council’s decision on of February 13, 2018, in which it upheld the
City’s Planning and Zoning Board approval of the Union on Elizabeth final development plan
and denied the plaintiff’s appeal of that approval.
3. Plaintiff has undisputedly not named as a defendant in this action the applicant owner
behind the Union on Elizabeth development plan.
4. The Colorado appellate courts have repeatedly held that a zoning applicant is an
indispensable party to a Rule 106(a)(4) action challenging that particular zoning decision made
by a governmental body. Black Canyon Citizens Coalition, Inc., 80 P.3d 932, 933 (Colo. App.
2003); Thorne v. Bd. Of County Com’rs of Fremont County, 638 P.2d 69, 71 (Colo. 1981); Norby
v. City of Boulder, 577 P.2d 277, 280 (Colo. 1978); Hidden Lake Development Co. v. District
Court, 515 P.2d 632, 635 (Colo. 1973); Hennigh v. County Com’rs, 450 P.2d 73 (Colo. 1969).
1
5. The applicant owner is an indispensable party, as a matter of law, because it has rights
established by the zoning decision being challenged. Hidden Lake Development Co., 515 P.2d at
635. “That right cannot be abrogated by judicial action unless the [applicant] is before the court
to assert its defenses.” Id. A judgment which adversely affects an indispensable party who is not
joined is void, and thus “due process of law requires that those parties whose interests are at
stake be before the court.” Id.
6. Under Colorado law, failure to join an indispensable party is considered to be such an
“egregious defect” that the court may dismiss the action on its own motion; Id.; Hicks v.
Joondeph, 232 P.3d 248, 252 (Colo. App. 2009).
WHEREFORE, based upon the authority stated above, the City respectfully requests the
Court dismiss this matter due to Plaintiff’s failure to name the applicant as an indispensable party
defendant.
1
In fact, as reflected in these cited cases, it used to be that the applicant had to be named as a
defendant within the former 30-day time period for filing a Rule 106(a)(4) challenge to a zoning
decision, otherwise the action was subject to dismissal with prejudice for having been untimely
perfected. However, Rule 106(b) has since been modified to avoid this trap, expressly
authorizing amendments to add, dismiss or substitute parties, with such amendment relating back
to the date of the filing of the original complaint. Black Canyon Citizens Coalition, Inc., 80 P.3d
at 933. The applicant is nevertheless considered an indispensable party, and failure to name it as
a defendant or to take appropriate steps to add it as a party warrants dismissal.
3
DATED this 10
th
day of April, 2018.
WICK & TRAUTWEIN, LLC
This document was served electronically pursuant to
C.R.C.P. 121 §1-26. The original pleading signed by
Kimberly B. Schutt is on file at the offices of Wick &
Trautwein, LLC
By: s/Kimberly B. Schutt
Kimberly B. Schutt, #25947
Attorneys for Defendant
And
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
(970) 221-6520
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
Defendants’ Motion to Dismiss was filed via Colorado Courts E-Filing System and served this
10
th
day of April, 2018, on the following:
Rory Heath
2831 Ridgeglen Way
Colorado Springs, CO 80918
Via email to roryheath1@gmail.com
/s/ Jody L. Minch_______________________
[The original certificate of electronic filing signed by Jody L. Minch
is on file with the law offices of Wick & Trautwein, LLC.]