HomeMy WebLinkAbout2018CV01 - Sutherland V. City Of Fort Collins, Et Al - 006 - Amended ComplaintFORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 221 6800
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Plaintiffs: Eric Sutherland, J & M Distributing, DBA Fort
Collins Muffler and Automotive
v.
Defendant : THE CITY COUNCIL OF THE CITY OF FORT
COLLINS, the governing body of a Colorado municipal
corporation; and THE ADMINISTRATION BRANCH OF THE
CITY OF FORT COLLINS, by and through its City Manager,
Darin Atteberry.
Indispensable party: Craig Russell, Applicant
Parties without attorney
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
(970) 224 4509
sutherix@yahoo.om
J & M Distributing, DBA Fort Collins Muffler and Automotive
Brian Dwyer, President
2001 S. College Ave.
Fort Collins, CO 80525
(970) 484 0866
bdwyer1199@gmail.com
Case Number:
2018civil01
AMENDED COMPLAINT BROUGHT UNDER C.R.C.P. RULE 106, REQUEST FOR INJUNCTIVE RELIEF AND
DECLARATORY JUDGMENT
This Amended Complaint has been changed from the original in the
following ways.
1) An indispensable party has been named in the Caption and this party will
be subsequently served by summons once issued by the Municipal Court
clerk.
2) The Title of the Complaint was amended by deleting “(a)(2)” following
“106”
3) Paragraph #’s 61, 62, 63 and 64 were added. The paragraph previously
numbered 61 was renumbered to 65.
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Plaintiffs, Eric Sutherland and J & M Distributing, in this Complaint
alleging abuse of discretion by the City Council of the City of Fort Collins and
request for injunctive relief, hereby state and allege as follows:
Introduction
The City of Fort Collins (the City) is a home rule municipality in the state of
Colorado. Pursuant to authority granted Article XX section 6 of the Colorado
Constitution, the City of Fort Collins has adopted a City Charter. By adoption of a
home rule City Charter (the Charter), the City has claimed authority over all
planning and zoning issues in the City. All powers of the city and the
determination of all matters of policy pertaining to planning and zoning are vested
in the Defendant City Council. See Charter Article II section 5 (b) (8).
The powers of the City in the field of planning and zoning include the
exclusive authorization for the construction of improvements on real property
within the corporate limits of the City and no improvements may be constructed
without such authorization. The process of granting authorization for the
construction of improvements, also referred to as vested rights, is generally known
as development review and is defined and controlled by the laws of the City of Fort
Collins as adopted by Ordinance of the Council and amended from time to time in
the City Code, the Land Use Code and the zoning map.
The development review process grants vested rights upon favorable
findings in a public hearing held by a decision maker, who thereafter makes a
determination as to whether or not the proposed development conforms with
standards for development and use found in the Land Use Code and the zoning
map. Such public hearing and resulting decision are quasi-judicial and may be
appealed to the Council in accordance with procedure established in the City Code.
The City Council’s review of a decision from a lower tribunal is also quasi-judicial
in nature. As such, an abuse of discretion by the City Council is subject to appeal
to a court of competent jurisdiction. This complaint is such an appeal.
Article VII section 1 of the Charter states, in relevant part:
There shall be a Municipal Court vested with original jurisdiction of all causes
arising under the City's Charter and ordinances. …
Rules of procedure, costs and fees shall be enacted by the Council upon
recommendation of the Municipal Judge.
The Supreme Court of the State of Colorado has ruled that language substantially
similar to that of Article VII section 1 means precisely what it says. The
Municipal Court of the City of Fort Collins has exclusive original jurisdiction over
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this matter. See Town of Frisco v Baum, 90 P. 3d 845 (Colo 845). In response to
the first ever civil suit filed in this court in 2017, 17civil01, defendant City Council
did adopt procedures for adjudicating civil matters brought to the municipal court.
See Ordinance 052, 2017 adopted on 2nd reading April 18th, 2017. The effect of
Ord. 052 was to adopt the Colorado Rules of Civil Procedure C.R.C.P. to govern
the procedures in this court in all civil matters arising from Charter, Code and City
Ordinances.
The City of Fort Collins has, for a long period of time, conducted its
administrative and quasi-judicial affairs in the arena of development review with a
general disregard for rule of law. The legislative intent of the standards for
development review and the very modest protections that such standards provide
the citizens of Fort Collins are ill observed. The present case brought before the
Municipal Court brings the bad faith and exploitation into view and exposes
various deficiencies in process at the same time. The failure to refine and evolve
process and the absence of fidelity to the purpose of the ordinances that control
development review may be traced to an administrative paradigm that has lost
sight of the public interest.
Parties
1. The City of Fort Collins is a home rule municipality located in Larimer
County, Colorado and organized by a City Charter adopted in accordance with
Article XX section 6 of the Colorado constitution.
2. The Defendant Administrative Branch of the City of Fort Collins is under
the supervision and control of the City Manager, Darin Atteberry, pursuant to
Article III of the Charter. In particular, the administrative affairs of the Defendant
Administrative Branch include the granting of final vested rights in development
review proceedings including but not limited to the execution of a development
agreement with the City, re-platting of land and the approval of a Final
Development Plan (FDP) in accordance with Division 2.5 of the Land Use Code.
3. The Defendant City Council of the City of Fort Collins is the governing
body of the City of Fort Collins pursuant to Article II of the charter. In particular,
the Defendant City Council’s review of appeals from development review hearings
conducted by the Planning and Zoning Board lies in mandamus and is quasi-
judicial in nature.
4. Although individually named, both the Administrative Branch and City
Council are components of the City of Fort Collins, an independent sub-division of
the state of Colorado. Whether these two parties is named individually or
collectively is of no consequence in this matter in terms of the relief requested.
This court has jurisdiction over both.
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5. Plaintiff Eric Sutherland is a citizen of Fort Collins. Sutherland was an
interested party in the review of the application for vested rights by the Fort
Collins Planning and Zoning Board by virtue of appearing at the Planning and
Zoning Board hearing and providing public comment. Sutherland was one of two
appellants who filed a joint appeal of the Planning and Zoning Board decision.
6. Plaintiff J & M Distributing (J & M) is an S-corporation with operations
in Fort Collins doing business as Fort Collins Muffler and Auto. The President of
J & M Distributing, Brian Dwyer, represented the company with comments to
Council on the occasion of the appeal of the Planning and Zoning Board decision
in PDP#170034. J & M Distributing was an interested party for purposes of
appeal by virtue of property owned by the company within the notification area of
for the Planning and Zoning Board hearing.
Venue
7. The Municipal Court of the City of Fort Collins has original jurisdiction
of all matters arising from the Charter and ordinances of the City of Fort Collins.
(See Introduction and Article VII of the Charter). All matters complained of and
all requests for injunctive relief here arise from the Charter and ordinances of the
City. All actions of the Defendant City Council complained of herein are matters
of exclusively local interest. All controlling laws in this matter are local laws that
have been duly adopted in a field of exclusively local interest. All administrative
actions of the Defendant Administrative Branch sought to be enjoined and
restrained by the Plaintiffs are exclusively matters of local control. Venue is
proper in this court.
Jurisdiction
8. The Plaintiffs herein allege an abuse of discretion by the Defendant City
Council in failing to ensure that the laws of the City of Fort Collins applicable to
review of a proposed construction of improvements on property within the city
limits were applied uniformly and fairly. Said laws create for the Plaintiffs a
legally protected right to the use and enjoyment of the Fort Collins community
whether on public or private property. The Plaintiffs further allege that this abuse
of discretion will deprive Plaintiffs of property rights and rights under law. The
Land Use Code of the City of Fort Collins creates legally protected rights for
citizens. All citizens of Fort Collins have the legal expectation that the
community they live in or own property in will develop in the manner agreed to by
the adoption of the Land Use Code. Any development that proceeds in a manner
inconsistent with the requirements of the Land Use Code creates an injury-in-fact
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whether it be a tangible or intangible injury. The Muncipal Court of the City of
Fort Collins has subject matter jurisdiction over this dispute.
9. The Defendant Administrative Branch of the City of Fort Collins is
required by Article III section 2 (f) to enforce the laws and ordinances of the city.
The award of vested development rights to a party for a proposed construction of
improvements that is inconsistent and incompatible with the standards of the Land
Use Code is a failure to enforce the laws and ordinances of the city. The
Municipal Court of the City of Fort Collins has jurisdiction over the Defendant
Administrative Branch in this dispute.
10. The decisions of the Defendant City Council of the City of Fort Collins,
when acting in a quasi-judicial capacity for the purposes of reviewing matters of
exclusively local interest is subject to further judicial review by a superior court.
The Municipal Court of the city of Fort Collins is a superior court by virtue of
Article VII of the Charter and the decision of the Colorado Supreme Court in Town
of Frisco v. Baum, supra. The Municipal Court of the City of Fort Collins has
jurisdiction over the Defendant City Council in this dispute.
General allegations
11. On January 18th, 2018, the Planning and Zoning Board (the “Board”)
reviewed and approved the Johnson Drive Apartments Project Development Plan
PDP#170034 (the “PDP” or "Project").
12. A Notice of Appeal of the Board's approval of the PDP was filed with
the City Clerk on February 1, 2018, pursuant to Chapter 2, Article II, Division 3, of
the City Code by Eric Sutherland and another citizen of Fort Collins. See exhibit 1.
13. Generally, the appeal noted in the preceding paragraph alleged that the
Planning and Zoning Board had failed to apply relevant standards of the Land Use
Code. See Grounds for the Appeal 1-4. A fifth Grounds alleged that standards
appearing in the LUC were unconstitutionally vague and were also unenforceable
and were therefore insufficient for the purposes of protecting the rights of the
public set forth in the LUC. Also, the appeal alleged that the Board received and
considered evidence that was substantially false or misleading.
14. On February 27, 2018, the defendant City Council, after notice given in
accordance with Chapter 2, Article II, Division 3, of the City Code, considered the
Appeal. As is the custom of Defendant Administrative Branch, the staff of the
City of Fort Collins planning department participated in the appeal process in a
substantial capacity with an undisputable bias shown to the position of the
opponent of the Appeal.
15. Defendant City Council, by motion and affirmative vote, found that the
Appeal was without merit as to all allegations. The practical effect of that
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decision was made official pursuant to City Code by the adoption, at its next
regular meeting held on March 6, 2018, of RESOLUTION 2018-023 OF THE COUNCIL
OF THE CITY OF FORT COLLINS ADOPTING FINDINGS OF FACT AND
CONCLUSIONS MAKING FINDINGS OF FACT AND CONCLUSIONS OF LAW
REGARDING THE APPEAL OF THE PLANNING AND ZONING BOARD’S DECISION
APPROVING THE JOHNSON DRIVE APARTMENTS PROJECT DEVELOPMENT PLAN
PDP170034. See exhibit 2, the Resolution.
First claim for relief
16. The Plaintiffs incorporate the General Allegations as if fully set forth
herein.
17. The first of five grounds for the appeal generally alleged that deferring
the sufficiency of any aspect of a development controlled by the Land Use Code
runs counter to the legislative intent of the Code and alleged that a determination
of the sufficiency of a design for a trash enclosure as controlled by LUC section
3.10.5(C) had been deferred. This allegation is unquestionably an allegation that
the Board had failed to properly interpret and apply LUC section 2.4.2(H), Step 8.
See Exhibit 1.
17. The materials presented to the Planning and Zoning Board did not
include a design schematic or specifications of any kind that described the trash
enclosure other than a plan view that indicated the location and approximate size of
the footprint of a proposed trash enclosure.
18. As it applies specifically to this claim, the specifications for the
sufficiency of a trash enclosure require compatibility with adjacent land uses. See
Land Use Code section 3.10.5(C).
19. The adjacent land uses of the proposed trash enclosure are a well-
traveled pedestrian and bicycle trail and a real gem of a public park. In particular,
the trail passes right next to the proposed site of the trash enclosure as it makes a
tight curve. The presence of a potential trash enclosure, if added to this location,
will be the dominant feature proximate to any user of the trail.
20. The transcript of the January 18, 2018 Planning and Zoning Board
hearing clearly indicates that the Board did not pass any judgment let alone a
judgment on the compatibility of the proposed design with adjacent land uses.
21. Instead, the record of the hearing shows the Board deferring a decision
on compatibility to others.
22. Under the Land Use Code, a determination of the compatibility of a trash
enclosure lies exclusively in the sound discretion of the Board.
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23. In considering the matter of the abdication of the Board to judge the
sufficiency of a design for a trash enclosure as to its compatibility, defendant City
Council abused its discretion by disregarding the preponderance of evidence that
indicated that the Board had abdicated its exclusive discretion over compatibility to
others in a manner that is inconsistent with the requirements of Land Use Code
section 2.4.2(H) step 8.
24. It is without question that the record on appeal shows the defendant City
Council misapprehending the allegation and relying upon fraudulent assurances
and mistaken representations from city staff to conclude that somehow the Board,
which had not seen a design for trash enclosure, had somehow judged the
sufficiency of the trash enclosure as to its compatibility with adjacent land uses. In
fact, city staff erroneously represented that the trash enclosure, which had never
been documented with design specifications, met the requirements of the Land Use
Code.
25. The First grounds for Appeal was a correct and accurate representation
of the requirements of the Land Use Code and the failure of the Board to properly
interpret and apply these requirements. Defendant City Council abused its
discretion by disregarding matters of fact and law and finding that the First
Grounds for Appeal was without merit. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for a determination of the sufficiency of a design for a trash enclosure.
Second claim for relief
26. The Plaintiffs incorporate the General Allegations and the First claim for
relief as if fully set forth herein.
27. The Second grounds for the appeal generally complained that the PDP
was not in compliance with the requirements of the General Commerical Zone,
Land Use Code section 4.21. Specifically, the Appeal noted the absence of a
pedestrian/bicycle pathway from the subject property to the adjacent property to
the South and points beyond including the MAX BRT station, (Spring Creek
Station.) The suggested remedy for the deficiency brought forth in the Second
grounds was, at a minimum, a dedication of public right of way.
28. Although suggested as a remedy, the failure to dedicate a right of way
was the crux of the allegation in the Second grounds for the Appeal.
29. In addition to the requirements for the General Commercial Zone, the
Land Use Code contains many requirements for connectivity of subject parcels to
adjacent and proximate parcels and areas. Specifically, Land Use Code section
3.2.2 contains several requirements for connectivity that operate harmoniously and
in support of the General Commercial Zone requirements.
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30. Under modern rules of pleading, courts look to the "essence of a claim
regardless of how it is denominated." Bainbridge, Inc. v. Travelers Casualty Co.,
159 P.3d 748, 755 (Colo.App.2006); see also Hutchinson v. Hutchinson, 149 Colo.
38, 41, 367 P.2d 594, 596 (1961) ("The substance of the claim rather than the
appellation applied to the pleading by the litigant is what controls."); Sheffield
Services Co. v. Trowbridge, 211 P.3d 714, 718 (Colo.App.2009) ("the claim's
substance rather than [its] appellation ... controls"). Although specific citations of
provisions of the Land Use Code such as 3.2.2 were not presented upon appeal, the
essence of the claim was unquestionably clear.
31. The defendant City Council misapprehended the requirements of the
Land Use Code in regards to the failure of the Board to require connectivity of the
subject parcel with the area to the South including Spring Creek Station.
Specifically, defendant City Council, at the urging of Councilman Gerry Horak,
invented a theory that connectivity is only required when a sub-area plan has been
developed that prescribes certain trails or other public rights of way. Reliance on
this theory, as opposed to the actual requirements of the Land Use Code was
misplaced and resulted in an abuse of discretion when finding the allegations of the
Second grounds for the Appeal to be meritless.
32. Additionally, several members of Defendant City Council voiced support
for improved connectivity in this area and the deficiencies of pedestrian and
bicycle connections that presently exist.
33. The Second grounds for Appeal was a correct and accurate
representation of the requirements of the Land Use Code and the failure of the
Board to interpret and apply these requirements. Defendant City Council abused
its discretion by disregarding matters of fact and law and finding that the First
Grounds for the Appeal was without merit. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for inclusion of proper design and right of way conveyance in keeping with the
requirements of connectivity for bicyclists and pedestrians as specified in the Land
Use Code.
Third claim for relief
34. The Plaintiffs incorporate the General Allegations and the First and
Second claims for relief as if fully set forth herein.
35. The Fifth grounds for the Appeal generally alleged that allowances that
provide for a reduction of the number of parking spaces built into a residential
housing project in the Transit Oriented Development (“TOD”) zone are
unconstitutionally vague and unenforceable. Reliance upon unconstitutionally
vague and unenforceable allowances, which are also referred to as mitigation
strategies, subverts the legislative intent of the Land Use Cole and abridges the
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rights of all citizens within the community in general and residents and business of
neighboring properties in particular.
36. The PDP was not clear as to what mitigation strategies the applicant was
claiming, however, it was assumed that 1.) Car sharing and 2.) transit passes were
claimed and responsible for a reduction in the number of parking spaces that were
otherwise required. The requirements for parking in the TOD and the mitigation
strategies that may be employed to reduce the number of parking spaces are found
in Land Use Code section 3.2.2 (K).
37. No operational understanding of what “Car Share” means or requires of
the applicant was adduced by the Board during the hearing of the PDP. No
expectation of what could be expected was defined or explained. No conditions
for approval relating to this issue were imposed.
38. The mitigation strategy for “Car Share” in the TOD is unconstitutionally
vague. As such, it is improper to rely upon any claim that the requirements for
parking may be reduced as a result of compliance with this standard in the absence
of definitions or operational understandings that are captured in the course of
development review, most likely as the imposition of conditions.
39. The Defendant City Council misapprehended the sufficiency of the
mitigation strategy pertaining to “Car Share” while failing to note that the Board
had taken no steps to assure compliance with the legislative intent of the parking
requirements in the TOD in light of an unconstitutionally vague mitigation strategy
and the absence of any attempt to define the necessary elements of the strategy.
40. The Fifth grounds for the Appeal was a correct and accurate
representation of the vagueness of the mitigation strategy described only as “Car
Share” and the failure of the Board to properly specify conditions to ensure that a
reduction in required parking spaces did not compromise the legislative intent of
the parking requirements for residential housing in the TOD. Defendant City
Council abused its discretion by disregarding matters of fact and law and finding
that the Fifth Grounds for the Appeal was without merit as it pertained to the
vagueness of the “Car Share” allowance. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for the specification of conditions for “Car Share” commensurate with the
reduction of parking spaces associated with the claimed level of “Car Share” upon
which the reduction was based.
41. The Plaintiffs respectfully request that this court issue a declaration that
the mitigation strategy for “Car Share” is unconstitutionally vague and that without
further clarification presented in codified ordinance of the City of Fort Collins do
not represent an adequate means for effecting a reduction of parking spaces that
would otherwise be required in the TOD.
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Fourth claim for relief
42. The Plaintiffs incorporate the General Allegations and the first, second
and third claims for relief as if fully set forth herein.
43. No operational understanding of what “Transit Passes” means or requires
of the applicant was adduced by the Board during the hearing of the PDP. No
expectation of what could be expected was defined or explained. No conditions
for approval relating to this issue were imposed.
44. The mitigation strategy for “Transit Passes” in the TOD is
unconstitutionally vague. As such, it is improper to rely upon any claim that the
requirements for parking may be reduced as a result of compliance with this
standard in the absence of the definitions or operational understandings that are
captured in the course of development review, most likely as the imposition of
conditions.
45. The Defendant City Council misapprehended the sufficiency of the
mitigation strategy pertaining to “Transit Passes” while failing to note that the
Board had taken no steps to assure compliance with the legislative intent of the
parking requirements in the TOD in light of an unconstitutionally vague mitigation
strategy and the absence of any attempt to define the necessary elements of the
strategy.
46. The Fifth grounds for the Appeal was a correct and accurate
representation of the vagueness of the mitigation strategy described only as
“Transit Passes” and the failure of the Board to properly specify conditions to
ensure that a reduction in required parking spaces did not compromise the
legislative intent of the parking requirements for residential housing in the TOD.
Defendant City Council abused its discretion by disregarding matters of fact and
law and finding that the Fifth Grounds for the Appeal was without merit as it
pertained to the vagueness of the “Transit Passes” allowance. This matter must be
remanded to defendant City Council with instructions to remand this matter back
to the Board for the specification of conditions for “Transit Passes” commensurate
with the reduction of parking spaces associated with the claimed level of “Car
Share” upon which the reduction was based.
47. The Plaintiffs respectfully request that this court issue a declaration that
the mitigation strategy for “Transit Passes” is unconstitutionally vague and that
without further clarification presented in codified ordinance of the City of Fort
Collins do not represent an adequate means for effecting a reduction of parking
spaces that would otherwise be required in the TOD.
Fifth claim for relief
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48. The Plaintiffs incorporate the General Allegations and the first, second
third and fourth claims for relief as if fully set forth herein.
49. The adoption of a mitigation strategy for either “Car Share” or “Transit
Passes” is meaningless in terms of effecting the legislative intent of the parking
requirements in the TOD without a guaranty that these strategies will be employed.
50. With the exception of those requirements allowing and disallowing for
specific uses of property in different zone districts that are found in Article 4 of the
Land Use Code, all other standards of development are enforceable by the
defendant City Administration by virtue of the ability to deny a certificate of
occupancy to a development that has not complied with the standards.
51. Article 4 standards for use are enforceable under a paradigm of local and
state laws for the maintenance of zone districts.
52. “Car Share” and “Transit Passes” can not be construed to be a use in
keeping with the uses defined and in Article 4. Furthermore, “Car Share” and
“Transit Passes” are not specific to a zone district as they are only relevant in the
context of parking standards in the TOD. “Car Share” and “Transit Passes” may
not be enforced by the application of state and local laws in the event of a failure to
comply with whatever “Car Share” and “Transit Passes” may be deemed to be.
53. No other means of enforcing “Car Share” or “Transit Passes” exists that
may be relied upon for assurance that the mitigation presumed to compensate for a
reduction in the number of parking spaces will fulfill the legislative intent of the
parking standard for residential development in the TOD.
54. In the Appeal, city staff erroneously suggested that relief would be
available by virtue of language added to a development agreement. This
statement is only accurate to the extent that a court of law may order specific
performance for a breach of contract. Such a remedy is unacceptable in that it
relies upon state courts for enforcement, requires civil action on the part of the City
of Fort Collins and provides for no disincentive or penalty for non-compliance.
55. As a Home Rule City, defendant City Council has the authority to
legislate in the area of enforcement of terms of development agreements including
the imposition of fines and/or imprisonment for violations of terms of development
agreements. However, defendant City Council has not so legislated.
56. The Fifth grounds for the Appeal was a correct and accurate
representation of the unenforceability of the mitigation strategies described only as
“Car Share” and “Transit Passes”. Defendant City Council abused its discretion
by disregarding matters of fact and law by finding that the Fifth Grounds for the
Appeal was without merit as it pertained to the unenforceability of the “Car Share”
and “Transit Passes” allowance.
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57. The Plaintiffs respectfully request that this Court issue a declaration that
the unenforceability of “Car Share” and “Transit Passes” precludes any reduction
in the number of parking spaces required of residential housing in the TOD as a
mitigation strategy.
Sixth claim for relief
58. The Plaintiffs incorporate the General Allegations and all previous
claims for relief as if fully set forth herein.
59. The Plaintiffs are at risk of injury should the Defendant Administrative
Branch execute a development agreement or grant approval of a Final
Development Plan (FDP) on the basis of the deficient approval of the PDP by the
Planning and Zoning Board and the abuse of discretion of the Defendant City
Council complained of herein.
60. The Defendant Administrative Branch must be enjoined and ordered to
refrain from any administrative action that would further the construction of
improvements as have been unlawfully granted approval by the actions of the
Defendant City Council during the pendency of the resolution of this complaint
including any appeals to a higher court.
61. The probability of prevailing on the merits of our claims is extremely
high. The Complaint and the record speak for itself. The unfavorable results of
the Planning and Zoning Board’s review of the PDP application and City Council’s
review of that decision are characterized accurately as a kangaroo court where the
substantive allegations of deficiencies are disregarded the same as the black letters
on the white pages of the Land Use Code. Regardless of whether or not this
Municipal Court continues the tradition established by the other component units
of the municipal corporation, it is extremely unlikely that a higher court will. For
example, it is extremely unlikely that any Judge of the 8th District Court would
look at the words “car sharing” and conclude that this “mitigation strategy” is not
unconstitutionally vague.
62. There can absolutely no question that if this project is built, for example,
without adequate and enforceable standards for parking demand mitigation
strategies that a tangible economic injury will be incurred by Plaintiff J & M
Distributing. Injunctive relief in this regard is absolutely essential to avoiding
injury.
63. If there were any other relief of any sort available, it would have been
pursued. Of course, the most rational and beneficial relief available to all parties
would be for the extremely reasonable and justifiable relief requested in this
complaint be granted with a minimum of delay. Unless and until that happens, the
only means of preventing future injury is injunctive relief.
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64. Should this court grant injunctive relief as requested here, the public
interest will be significantly advanced. The public is deserving of the basic
requirements of development found in the Land Use Code and the public will
benefit to have these requirements met. It is not disputed that the imposition of
injunctive relief as requested here has may have a detrimental effect on the
interests, but not the legally protected rights, of one or more private parties.
However, it must be concluded that these private parties have little or no affinity
with the public interest as evidenced by the disregard of the Land Use Code and
the cursory protections it offers to the public.
65. The Plaintiffs respectfully request that this court enjoin further
administrative actions including the approval of a Final Design Plan as defined by
Division 2.5 of the Land Use Code.
Prayer for relief
WHEREFOR, Plaintiffs pray that this Court issue the aforementioned declarations
and injunction; enter judgment for Plaintiffs on each operable claim; and provide
such other and further relief as the Court deems just and proper.
Respectfully submitted this 3rd day of April, 2018
Eric Sutherland Brian Dwyer
___Eric Sutherland____________ ___Brian Dwyer__________
Address of Lead Plaintiff
3520 Golden Currant
Fort Collins, CO 80521